Common-Law Partner Misses Deadline for Credit Split

Citation: [NAME]  v  [NAME] , 2026  [NAME]  5 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] [NAME] Decision under appeal: General Division decision dated July 7, 2025 (GP-25-652) Tribunal member: [NAME] of hearing: In Writing Decision date: January 6, 2026 File number: AD-25-475 On this page Decision Overview Issues Analysis Conclusion Decision [ 1 ] The appeal is dismissed. The Appellant is not entitled to a division of unadjusted pensionable earnings ( DUPE , or “credit split”) under the [NAME] ( [NAME] ). Overview [ 2 ] In this decision, I will refer to the Appellant, L. D., as the “Claimant.” I will refer to the [NAME] as the “Minister.” I will refer to the late [NAME] as “[NAME].” [ 3 ] The Claimant and [NAME] began a common-law relationship in May 2006. They appeared to separate on February 1, 2020. Footnote 1 [NAME] died on January 21, 2023. Footnote 2 [ 4 ] The Claimant applied for a DUPE on February 27, 2024. Footnote 3 The Minister denied her application initially and on reconsideration. The Claimant then appealed to the Social Security Tribunal (Tribunal). The Tribunal’s General Division dismissed her appeal. In each case, she was denied because she had not applied for the DUPE until more than four years after her common-law relationship with [NAME] ended. [ 5 ] The Claimant appealed to the Tribunal’s Appeal Division. She submitted that the relationship did not actually end on February 1, 2020. In the alternative, she said she and [NAME] made attempts to reconcile after February 1, 2020. In the further alternative, she said she missed the four-year deadline by less than a month and her appeal should be allowed on compassionate grounds. She noted the abuse that [NAME] inflicted upon her. She requested a hearing in writing, instead of an oral hearing. Footnote 4 [ 6 ] The Minister continued to rely on the four-year deadline set out in the [NAME] . The Minister submitted that the relationship ended on February 1, 2020, and the Claimant did not apply for the DUPE until more than four years later. [ 7 ] I must first decide when the Claimant and [NAME] started to live separate and apart. I must then decide whether the Claimant is entitled to a DUPE . If she is, I must further decide the period covered by the DUPE . [ 8 ] I find that the Claimant and [NAME] started to live separate and apart on February 1, 2020. She did not apply for the DUPE until more than four years later. As a result, she is not entitled to a DUPE . [ 9 ] I will now explain how I made these findings. Issues [ 10 ] The issues in this appeal are: a) When did the Claimant and [NAME] start living separate and apart? b) Given the separation date, is the Claimant entitled to a DUPE ? c) If the answer to b) is yes, what are the applicable DUPE dates? Analysis [ 11 ] A DUPE could potentially occur if two people cohabit for a continuous period of at least one year. Footnote 5 [ 12 ] However, people are not cohabitating if they are living separate and apart. They are deemed to live separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other. Footnote 6 [ 13 ] The evidence consistently shows that the Claimant and [NAME] cohabited for an extended period starting in May 2006. Footnote 7 The Claimant and the Minister appear to agree on this. This means the Claimant could be eligible for a DUPE if she applied in time. [ 14 ] However, the Claimant and the Minister do not agree on the separation date. This is a critical issue, as a former common-law spouse must apply for the DUPE within four years after the spouses began to live separate and apart. Footnote 8 When did the Claimant and [NAME] start living separate and apart? [ 15 ] I find that the Claimant and [NAME] started living separate and apart on February 1, 2020. I also see no basis for extending that date into the future. I will now explain why. Without considering possible exceptions, when did the Claimant begin to live separate and apart from [NAME]? [ 16 ] The Claimant has consistently declared that she and [NAME] separated on February 1, 2020. I accept that this is when they began to live separate and apart. [ 17 ] The Claimant’s first declaration was in a separation agreement that both she and [NAME] signed. Footnote 9 I will call this the “Agreement.” The Claimant signed the Agreement on September 23, 2021. [NAME] signed the Agreement on September 30, 2021. Footnote 10 [ 18 ] In the Agreement, the Claimant and [NAME] agree that they separated on February 1, 2020. I see no reference in the Agreement to any period of reconciliation after that date. They each had their own legal counsel and received legal advice about the Agreement and any potentially relevant law. They acknowledged that they were of sound mind, understood their respects rights and obligations, and signed the Agreement without any undue influence or coercion. Footnote 11 [ 19 ] I further note that the Claimant and [NAME], and their legal counsel, were aware in September 2021 that a DUPE may have been possible. The Agreement explicitly mentions it. Footnote 12 I will discuss this in more detail later, when I determine whether any exception to the four-year limitation period applies. [ 20 ] Attached to the Agreement were additional statements about the Agreement. The Claimant agreed that she signed the Agreement separate and apart from [NAME]. She said she was aware of the Agreement’s nature and effect. She said she signed the Agreement, “freely and voluntarily and without any compulsion on the part of [[NAME]].” Footnote 13 [ 21 ] The Claimant’s then-lawyer also signed two certificates about the Agreement. The lawyer said the Claimant was aware of the Agreement’s nature and effect. The lawyer said she had explained the Agreement’s contents to the Claimant, and that the Claimant understood and voluntarily signed the Agreement. The lawyer also said the Claimant acknowledged entering the Agreement, “freely and voluntarily and without duress, compulsion, intimidation or inducement thereto.” Footnote 14 [ 22 ] I find the Agreement persuasive. It clearly states February 1, 2020, as the separation date. Extreme care was taken to ensure that the Claimant had legal advice and entered the Agreement voluntarily. [ 23 ] Furthermore, the Claimant said on multiple subsequent occasions that the separation date was February 1, 2020. She said this in her: March 2023 Statutory Declaration, Footnote 15 February 2024 DUPE application, Footnote 16 September 2024 Statutory Declaration, Footnote 17 and February 2025 reconsideration request. Footnote 18 [ 24 ] All four statements were made after [NAME]’s death. In my view, this counters any argument that [NAME] pressured or compelled the Claimant to declare February 1, 2020, as the separation date in the Agreement. [ 25 ] The Claimant’s many statements up to February 2025 clearly set a separation date of February 1, 2020. So does the Agreement, which also represents [NAME]’s only evidence on the issue. [ 26 ] While other objective evidence is scarce, it is also consistent with a separation date of February 1, 2020. [ 27 ] On February 14, 2020, the Claimant paid a security deposit on her new apartment. In May 2025, she said that was the day she left the house she shared with [NAME]. Footnote 19 But this directly contradicts her February 2025 statement that she, “physically left the house on 01 Feb 2020 due to domestic violence.” Footnote 20 It also contradicts the Agreement, her two Statutory Declarations, and her DUPE application. [ 28 ] I do not find it reasonable to prefer the Claimant’s May 2025 separation date statement to the Agreement and her many previous statements. In general, I find that statements made closer to the event in question are more reliable. Furthermore, in July 2025, she again said she left the house on February 1, 2020. Footnote 21 [ 29 ] On February 24, 2020, the Claimant received a benefit payment from the [NAME]. This included an “abuse benefit.” Footnote 22 This is also consistent with a separation date of February 1, 2020. [ 30 ] I will now see whether the separation date can be delayed by other means. Can the separation date be delayed by reconciliation attempts? [ 31 ] Sometimes, reconciliation attempts can affect cohabitation periods. Footnote 23 However, in this case, the Claimant cannot extend her cohabitation period due to reconciliation attempts. [ 32 ] As noted, evidence closer to the relevant time is generally preferable. In this case, the Agreement is a comprehensive document created shortly after the events in question. Both the Claimant and [NAME] agreed to the terms of the Agreement. In particular, the Agreement confirms that it would continue to apply even if the Claimant and [NAME] reconciled and cohabited for more than 90 days. However, the Agreement does not say that any such reconciliation had taken place. Footnote 24 [ 33 ] The Claimant made no mention of any reconciliation attempts until April 2025. She then made multiple statements about it. In the following paragraphs, I set out the most relevant portions of those statements. [ 34 ] In April 2025, the Claimant said she left the house “temporarily” on February 1, 2020. She added: Footnote 25 [[NAME]] and I tried to get back together as we both owned our house but our circumstances got complicated and [we] finally decided to move forward and legitimately legalized our separation on September 30, 2021. [ 35 ] In May 2025, the Claimant made a similar statement. Referring to February 2020, she said: Footnote 26 At that time as there was no final conclusion yet between [[NAME]] and [me]. It was a time off to avoid domestic violence. I went for a group intake counselling as well while figuring it out...what to do with my life. [[NAME]] and I...agreed in our final legal separation on Sept 23, 2021. [ 36 ] In June 2025, the Claimant made another statement regarding potential reconciliation. In the context of challenges she faced with [NAME], she said: Footnote 27 I have not fully recovered for each event until I walked away from the abusive environment I was into... [[NAME]] and I tried to save our relationship and our separation got finalized in 2021. [ 37 ] In her original July 2025 leave to appeal materials, the Claimant expanded further on what happened in February 2020: Footnote 28 I absconded a domestic violence environment. My life was endangered so leaving our home was not the end of my interdependence with [[NAME]]. Our children stayed in our home while I was dealing with my personal crisis. We tried to reconcile and worked on [it] for 6 months after I left our home... [ 38 ] In further July 2025 materials, the Claimant gave more details about February 1, 2020: Footnote 29 ...it was not the date of the breakdown of my interdependent relationship with [[NAME]] but indeed a time out from the abuse. There was a status quo between [[NAME]] and I to get back together which...continued for 6 months with love and support while I’m away from home. [[NAME]] pursued me and looked after our children to gain me back. In order for me to have a sound decision [I kept] myself apart from my family. My two biological children [were] left in our home while I [was] trying to recuperate from the abuse. If I was totally separated from [[NAME]], I should’ve brought my children with me when I sought help from Alberta housing. Also, in 2020, there was a pandemic where we were isolated [from] one another. [ 39 ] I am not persuaded that these statements can delay the separation date. Two main reasons combine to lead me to that conclusion. [ 40 ] Firstly, as noted, the Claimant did not refer to any reconciliation for more than five years after the February 1, 2020, separation. Evidence close to the time in question, especially in the form of binding agreements and statutory declarations, is preferable to retrospective evidence given many years later. [ 41 ] Secondly, even if the Claimant or [NAME] may have wanted to reconcile, that does not mean they were cohabiting. [ 42 ] As noted, people are deemed to be living separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other. The Claimant and [NAME] lived apart after February 1, 2020. As he died years ago, I cannot say what intention [NAME] might have had. But the Claimant clearly intended to live separate and apart from [NAME]. As set out in the passages above, she gave several reasons for doing so: Their circumstances were complicated She was figuring out what to do with her life She stayed away from her family to make a sound decision It was time off to avoid domestic violence and abuse Her life was endangered in the home She was recuperating from the abuse The pandemic dictated isolation from each other [ 43 ] I do not accept that the pandemic made the Claimant and [NAME] live separately. However, the other reasons disclose that the Claimant made a conscious and justifiable decision to live separate and apart from [NAME]. This shows an intention to live apart. Can the separation date be extended in any other way? [ 44 ] I see no other way to extend the separation date. [ 45 ] Section 78.1(3) of the [NAME] provides a narrow exception that, at first glance, might help the Claimant. It says: [W]here the persons subject to the division did not have the intention to live separate and apart but were separated by reasons of the occupation, employment or illness of either person, the separation does not constitute interruption of cohabitation. [ 46 ] I see no evidence suggesting that the occupation or employment of the Claimant or [NAME] caused their separation. This means the Claimant can only apply the exception if her illness or [NAME]’s illness caused the separation. [ 47 ] The word “illness” is not defined in the [NAME] or its regulations. According to the Cambridge Dictionary, “illness” is “a disease of the body or mind.” Footnote 30 [ 48 ] The evidence indicates that [NAME]’s ongoing abuse of the Claimant caused the separation. As terrible as that was, I cannot describe it as an “illness” for either [NAME] or the Claimant. [ 49 ] I saw no evidence that [NAME] had an illness causing domestic violence. I saw evidence that he had cancer, but the Claimant said he recovered from it before the separation. Footnote 31 As noted, she gave several reasons for living apart from [NAME]. One of those reasons was trying to avoid physical harm. But, on the evidence, I cannot say she had a “disease of the body or mind” that made her live apart from [NAME]. For a separation date of February 1, 2020, is the Claimant entitled to a DUPE ? [ 50 ] The Claimant is not entitled to a DUPE . I will now explain why. [ 51 ] The [NAME] provisions regarding married spouses do not apply to the Claimant. The Claimant and [NAME] were common-law partners. The [NAME] treats common-law partners differently. The Claimant cited some authorities that apply to married spouses, not common-law partners. Footnote 32 As a result, they do not help her. [ 52 ] The [NAME] contains two requirements for former common-law partners to qualify for a DUPE . The first is that the former partners have been living separate and apart for one year or more. Footnote 33 The Claimant easily met that requirement. She and [NAME] separated on February 1, 2020. [ 53 ] The second requirement relates to the timing of the application. The timing requirement can be met if: Footnote 34 The DUPE application is made within four years after the day on which the former common-law partners commenced to live separate and apart, or At any time after that four-year period, if both former common-law partners agree in writing. [ 54 ] The Claimant does not meet the first option for the timing requirement. She did not make the DUPE application within four years of the day after February 1, 2020. She filed her application on February 27, 2024. Footnote 35 [ 55 ] The Claimant said she intended to file her application before then. However, the legislation does not speak of intent to apply. The key element is making the application, not intending to make it. The [NAME] confirm that an application is made by submitting it to the Minister in writing. Footnote 36 [ 56 ] The Claimant also suggested that she satisfied the second option for the timing requirement. She said the four-year limitation does not bind her because she and [NAME] agreed in writing to waive it. [ 57 ] The Claimant relied on section 9.1 of the Agreement, which I will call the “Clause”. The Clause says: Footnote 37 9.1 [THE CLAIMANT] and [NAME] shall be entitled to request that their credits under the [NAME] be distributed equally in accordance with the provisions of the [NAME] Act for those credits acquired during the course of their relationship. [ 58 ] I accept that the Clause is part of a written agreement between the former common-law partners. [ 59 ] I also accept that the Clause has the effect of permitting the Claimant or [NAME] to request a DUPE . This is necessary because the Agreement otherwise purports to deal conclusively with all property matters between them. Footnote 38 In other words, a DUPE request could be made even though the Agreement is supposed to be the last word on the parties’ assets. [ 60 ] The question is whether the Claimant and [NAME] agreed that the Claimant could make a DUPE request at any time after the four-year deadline passed. [ 61 ] In my view, the Clause does not enable either the Claimant or [NAME] to avoid that four-year limitation. As written, the Clause extends only to the possibility of requesting a DUPE . Any such request must still comply, “with the provisions of the [NAME] Act” [ sic ]. Footnote 39 The [NAME] imposes a four-year limitation for former common-law partners to apply. To avoid that limitation, the Clause must specifically refer to that limitation. Footnote 40 The Clause does not. [ 62 ] The Clause 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 [NAME] ) would otherwise prohibit. The DUPE timing requirements of the [NAME] must still be observed and applied unless the Clause specifically addresses them. [ 63 ] As the Claimant did not meet the DUPE timing requirements, she is not entitled to a DUPE with regard to [NAME]. Can the Claimant succeed on compassionate grounds? [ 64 ] The Claimant cannot succeed in this appeal on compassionate grounds. [ 65 ] I accept that the Claimant was the victim of domestic violence and abuse by [NAME]. This is not in dispute. I have a great deal of sympathy for the Claimant and what she went through. [ 66 ] The problem is that I cannot circumvent the law on compassionate grounds. The Tribunal is created by statute. The Tribunal can only grant remedies that it has the specific statutory authority to grant. Footnote 41 In other words, I must apply the law as written. I cannot bend the requirements of the [NAME] . Footnote 42 What are the applicable DUPE dates? [ 67 ] The Claimant is not entitled to a DUPE . As a result, I do not need to determine the applicable DUPE dates. Conclusion [ 68 ] The appeal is dismissed. The Claimant is not entitled to a DUPE . She did not apply in time. Footnotes Footnote 1 See, for example, GD2-7, GD2-10, GD2-22, and GD2-25. Return to footnote 1 referrer Footnote 2 See GD2-24. Return to footnote 2 referrer Footnote 3 See GD2-5. Return to footnote 3 referrer Footnote 4 See AD1B-4. Return to footnote 4 referrer Footnote 5 See sections 55.1(3) and (4) of the [NAME]. Return to footnote 5 referrer Footnote 6 See section 55.1(2)(a) of the [NAME] . Return to footnote 6 referrer Footnote 7 See GD2-7, GD2-10, GD2-22, and GD3-2. Return to footnote 7 referrer Footnote 8 See section 55.1(1)(c) of the [NAME] . Return to footnote 8 referrer Footnote 9 See GD3-2 to GD3-13. Return to footnote 9 referrer Footnote 10 See GD3-8 and GD3-11. Return to footnote 10 referrer Footnote 11 See GD3-2 and GD3-3. Return to footnote 11 referrer Footnote 12 See GD3-5. Return to footnote 12 referrer Footnote 13 See GD3-13. Return to footnote 13 referrer Footnote 14 See GD3-13. Return to footnote 14 referrer Footnote 15 See GD2-25. Return to footnote 15 referrer Footnote 16 See GD2-7. Return to footnote 16 referrer Footnote 17 See GD2-10. Return to footnote 17 referrer Footnote 18 See GD2-15. Return to footnote 18 referrer Footnote 19 See GD4-1 and GD4-3. Return to footnote 19 referrer Footnote 20 See GD2-15. Return to footnote 20 referrer Footnote 21 See AD1B-3. Return to footnote 21 referrer Footnote 22 See GD4-4. Return to footnote 22 referrer Footnote 23 See section 55.1(2)(b) of the [NAME] and section 78.1 of the [NAME] . Return to footnote 23 referrer Footnote 24 See GD3-7. Return to footnote 24 referrer Footnote 25 See GD1-4. Return to footnote 25 referrer Footnote 26 See GD4-1. Return to footnote 26 referrer Footnote 27 See GD10-1. Return to footnote 27 referrer Footnote 28 See AD1-5. Return to footnote 28 referrer Footnote 29 See AD1B-3. Return to footnote 29 referrer Footnote 30 See https://dictionary.cambridge.org/dictionary/english/illness. Retrieved January 2, 2026. Return to footnote 30 referrer Footnote 31 See GD1-4. Return to footnote 31 referrer Footnote 32 For example, the Claimant refers to [NAME]  v  [NAME] , 2024  [NAME]  909. But that decision dealt with married spouses. Similarly, section 55.1(1)(b)(ii) of the [NAME] does not help her because it is for married spouses. Return to footnote 32 referrer Footnote 33 See section 55.1(1)(c)(i) of the [NAME] . Return to footnote 33 referrer Footnote 34 See section 55.1(1)(c)(ii) of the [NAME] . Return to footnote 34 referrer Footnote 35 See GD2-5. Return to footnote 35 referrer Footnote 36 See section 43(1) of the [NAME] . Return to footnote 36 referrer Footnote 37 See GD3-5. Return to footnote 37 referrer Footnote 38 See, for example, GD3-2 (1.4), GD3-3 (3.1), GD3-4 (3.3), GD3-7 (17.1), and GD3-8 (22.1 and 22.2). Return to footnote 38 referrer Footnote 39 The “[NAME] Act” does not exist. Both the pension program and the legislation are known as the “[NAME].” I am not providing an opinion on whether the reference to the “[NAME] Act” is valid, because the Clause fails to support the Claimant’s position anyway. Return to footnote 39 referrer Footnote 40 See MHSRD  v  D.M.B.  v  E.C. , (2010) CP 26360 ([NAME]), at paragraphs 25 and 29. While Board decisions are not binding, they can be persuasive. Return to footnote 40 referrer Footnote 41 See R.  v  Conway , 2010  SCC  22, at paragraph 82. Return to footnote 41 referrer Footnote 42 [NAME]  v  Canada (Attorney General) , 2017  FC  262, at paragraph 35. Return to footnote 42 referrer