# 2011-111 Pay and Benefits, Imposed Restriction (IR), Recovery of Overpayment/Debt Write-Off, Separation Expense (SE)

Case Summary

F&R Date: 2011–12–14

The grievor received separation expense (SE) benefits while on imposed restriction (IR). It was later determined that he had no entitlement and had been overpaid. The grievor attested to his due diligence in providing all the necessary information regarding his family situation to his superiors. He indicated that he relied on Subject Matter Experts and the approving authority that authorized his IR status. The grievor maintained that his parents qualified as dependants because they were “normally” resident with him. He pointed out that his parents did not cease to be his dependants simply because they remained in his residence at his old place of duty, during his posting to a new place of duty. Paragraph 209.997(2) of the Compensation and Benefits Instructions (CBI) provides the entitlement to SE. It stipulates that a member is entitled to SE as compensation for additional expenses as a result of the separation from his dependants when he is posted to a new place of duty. One of the conditions is that he must have a dependant as defined in paragraph (3) of CBI 209.80, who is normally resident with him at his place of duty.

Article 209.80 of the CBI provides, in part, that a dependant is “a relative by blood, marriage or common-law partnership or adoption legally or in fact who is normally resident with the member and for whom the member may claim a personal exemption under the Income Tax Act” (ITA) or, a family member who is permanently residing with the member, but who is precluded from qualifying as a dependant under the ITA because the family member receives a pension.

CANFORGEN 019/05, which was cancelled in February 2011, also mentioned a number of factors that were to be considered in approving IR. It specified that when it was determined that a move was not in the best interest of the family, a member could be authorized to proceed to his new place of duty unaccompanied.

The grievor explained to the Board why it was in his parent’s best interest to remain at his home at his old place of duty. The grievor also provided an affidavit setting out that he has been advised by the tax authorities that he is eligible to claim a personal exemption, as a caregiver (line 315), under the ITA.

As a result, the Board found that the grievor’s mother qualified as a dependant under subparagraph 209.80 (3) (b) of the CBI. Moreover, the Board found that, definitions aside, the affidavit makes clear the parents were “normally” residing with the grievor having done so for many years and that they were, in fact, dependent on him for shelter, food, and other necessities of life.

The Board observed that the CBI are Treasury Board regulations that must be interpreted as written, not as one may wish them to read. Accordingly, the Board found that the grievor was qualified for the SE benefits during the period of his posting.

The Board recommended that the Chief of the Defence Staff uphold the grievance by directing that any further recovery from this grievor be ceased immediately and that all monies recovered be reimbursed to the grievor.

CDS Decision Summary

CDS Decision Date: 2012–04–18

The CDS agreed with the Board's findings and its recommendation to grant the grievance. The CDS found that the decision to deny the grievor his entitlement to SE while separated from his dependent parents was unreasonable and contrary to CBI 209.997. The CDS was also troubled as to the repayment schedule the grievor was forced to make. The CDS directed the Chief of Military personnel to initiate a review of the DGCB's processes to review a file and reach a decision denying an entitlement, particularly DCBA's processes. The CDS found that is is not the first time that recovery of a significant amount of money has been overturned. The CDS was interested in ensuring that DGCB employs a mechanism for reviewing files that provides CF members with an opportunity to make representation before recovery action is initiated. The CDS also directed Assistant Deputy Minister - Finance and Corporate Services to issue direction that all financial and administrative staff recovery action is not to be taken without first consulting the members and allowing them a reasonable opportunity to make representation, and without a proper repayment schedule which will consider the members financial and personal circumstances.