# 2011-123 Pay and Benefits, Imposed Restriction (IR), Overpayment, Separation Expense (SE)

Case Summary

F&R Date: 2012–02–06

In July 2003, prior to leaving on a new posting, the grievor relocated his wife and household goods and effects (HG&E) to a third location at his own expense, in order for his wife to take care of her ailing mother. In March 2010, the grievor was informed he had received separation expense (SE) benefits in error for the period July 2003 to March 2010 and was required to reimburse an amount of $107,015.82.

The grievor took issue with this decision stating he was legitimately entitled to the SE benefits since he was authorized imposed restriction (IR) status by the appropriate approving authority, based on the fact that he was separated from his spouse for what he considered to be service reasons. He added that the intent of the IR/SE policy was to provide compensation for additional expenses as a result of the separation from dependants which was the case in his situation. He contended he accepted SE benefits in good faith relying upon the knowledge and expertise of the Director Military Careers personnel and was of the view that it is morally unjustifiable that he should pay for an error made by authorities specifically mandated to approve IR and SE. The grievor noted he was not enriched by the error as the benefits were used to compensate for additional expenses as a result of his separation from his HG&E.

The Director General Compensation and Benefits, the initial authority (IA) in the matter, denied the grievance. She stated that SE benefits are meant to provide financial assistance to Canadian Forces (CF) members who are separated from their dependants for service reasons and when dependants and HG&E remain at the former place of duty in the principal residence. According to the IA, since the spouse re-established her place of residence away from the location where the grievor's HG&E were last moved at public expense, she no longer met the definition of dependant which is "a person who normally resides with the CF member, in the member's principal residence".

In the Board's opinion, the IA analysis was incorrect; she used the definition of dependant contained in the 2009 Canadian Forces Integrated Relocation Program (CF IRP), which incorporates the concept of principal residence, concerning an IR approved in 2003. Compensation and Benefits Instructions (CBI) article 209.997 - Separation Expense, stipulates at subparagraph (2) (a) that the definition of dependant to be considered for the purposes of SE benefits is that set out in CBI paragraph 209.80(3): "the member's spouse or common-law partner, who is normally resident with the member at the member's place of duty...". The Board concluded that the grievor's spouse was normally resident with him at his place of duty prior to his posting in July 2003 and therefore complied with the definition of dependant set out in the CBI. The Board found that the grievor was eligible for IR status and resulting SE benefits for the period 2003 to 2005.

However, when the grievor was subsequently posted (twice) while his wife continued to reside at the same third location, he did not have a dependant "normally resident" with him at his place of duty and he should not have been granted IR status. The Board found that the grievor did not qualify for payment of the SE benefits for the period 2005 to 2010.

In the Board's view, this grievance reflected yet another example of the maladministration of the IR and SE benefits which the CF seeks to correct by requiring the grievor to pay back, with the institution regrettably taking no responsibility. The Board referred to recent findings and recommendations regarding the policies and the CF position (or lack thereof) on remission of debts owed to the Crown. It was the Board's view that the only option available to CF members who are seeking relief from debts owed to the Crown is by the remission process, where justified and when circumstances allow it.

The Board reiterated that some federal government departments have well-developed policies on remission that specify what is required in terms of substantiation in order to recommend to the appropriate Minister that the case be forwarded to the Treasury Board (TB) Ministers for consideration. The Board mentioned specifically the policy on remission of debt used by the Canada Revenue Agency as an example and proposed to apply the criteria set out in its guidelines.

The Board found that, in the circumstances, it would be unreasonable and unjust to collect this debt from the grievor.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.

The Board recommended that the CDS order the recalculation of the amount owed by the grievor for the SE benefits he received between 2003 and 2005, as he was eligible for IR status during that period.

The Board also recommended that the CDS direct Departmental authorities to prepare a submission (to be supported by the Minister of National Defence) to the TB requesting support for the remission of the remaining debt, as per section 23 of the Financial Administration Act. In the meantime, the Board recommended that no further recovery action be taken until a decision or remission is made by the TB.

CDS Decision Summary

CDS Decision Date: 2013–12–17

The CDS partially agreed with the Committee's recommendations. He agreed with the Committee that the grievor was entitled to Separation Expenses for his first posting, since his dependant was normally resident with him at his place of duty. However, the CDS was of the view that the grievor was no longer entitled to Separation Expenses for the next postings, even if his spouse normally resided with him, because the grievor's situation did not met one of those listed in CBI 209.997(5). The CDS found that the grievor was aggrieved, since the CAF beared some responsibility in applying an additional situation provided in two CANFORGENS which was not authorized by TB. Having concluded that there was no administrative remedy available to him, the CDS indicated that he had forwarded the grievor's file to the Directorate of Claims and Civil Litigation for assessment in accordance with the TB directive on Claims and Ex-Gratia Payments before issuing his decision. The CDS confirmed that a finacial settlement had been reached to the grievor's satisfaction.