# 2012-012 Pay and Benefits, Dependants, Imposed Restriction (IR), Overpayment, Separation Expense (SE)

Case Summary

F&R Date: 2012–04–30

The grievor, a divorced father with joint custody of two children was posted from one place of duty to another. He was authorized imposed restriction (IR) status and received separation expense (SE) benefits. Some two years later, it was deemed that the grievor was not entitled to SE benefits because his children were not considered "dependants" within the meaning of Compensation and Benefits Instructions (CBI) paragraph 209.80(3). As a result the grievor was directed to reimburse the sum of $18,016.39.

The grievor took issue with the decision and submitted a grievance; he contended that his children should be considered his dependants for the purpose of SE benefits. As redress, the grievor sought the offset of applicable relocation benefits for a single member and the cessation of repayment deductions pending the resolution of his grievance. He also suggested he should receive credit for the rations repayment on those weekends when he was absent, as well as the 25 days of annual leave and statutory holidays per year when he travelled back to visit his children.

The initial authority (IA) determined the grievor was not entitled to SE benefits for the reason previously mentioned and that he had to reimburse all of the SE benefits he had received. The IA added that the grievor's relocation file should reflect his single status without dependants, entitling him to the associated relocation benefits for his move in 2007 and the one back to his former place of duty in 2009.

The Board noted that CBI 209.80 subparagraph (3)(b) defines a dependant as a relative normally resident with the member, and for whom the member may claim an exemption under the Income Tax Act. The Board pointed out that in a number of cases, the Chief of the Defence Staff (CDS) explained that the definition of "normally resident" is not a mathematical calculation of the amount of time spent with the member, but is dependent on an evaluation of the facts of each case. In the case at hand, at the time the grievor was posted, he shared joint custody of his two children who had a bedroom in his home and stayed with him on alternating weekends, four weeks in the summer and alternating special holidays such as Christmas, Easter and March Break. During the school year, the children came to his home after school, five days per week, for a period of two or more hours per day. Consequently, the Board concluded that the grievor's children were his dependants.

The Board was not convinced however, that this was sufficient to justify the payment of SE benefits. The Board explained that the circumstances leading to the awarding of IR status resulting in eligibility for SE benefits are described at paragraph 209.997(5) of the CBI and that it is clear, by reading these provisions, that the grievor's situation met none of the criteria set forth in the CBI. The Board concluded that the grievor was not entitled to SE benefits.

The Board considered whether the decision to recover the overpayment for the full amount was reasonable and fair. In the present case, the Board found that the grievor was open and honest with his superiors concerning his personal situation and that this grievance was yet another example of the maladministration of the IR and SE benefits which the CF seeks to correct by requiring repayment from the member with the institution regrettably taking no responsibility. The Board was of the view that this debt caused the grievor financial hardship which he should not have to experience through no fault of his own. As it did in numerous similar cases, the Board found it was unreasonable and unjust to collect this debt from the grievor.

On the issue of credit for rations, the Board noted that Canadian Forces Administrative Order 208-1 explains that charges for rations contain a built-in remission factor for leave, statutory holidays and time off; consequently the Board was of the view that the grievor's request could not be granted as requested.

The Board recommended that the CDS uphold the grievance.

The Board recommended that the CDS direct departmental authorities to prepare a submission (to be supported by the Minister of National Defence) to the Treasury Board (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 should be taken until a decision on remission is made by the TB.

CDS Decision Summary

CDS Decision Date: 2014–06–10

The CDS partially agreed with the Committee's recommendation that the grievance should be granted. The CDS agreed with the Committee's findings that while the grievor's children could have been considered to be normally resident with him, and consequently, dependants, at his original place of duty, the grievor's situation met none of the criteria set out in CBI 209.997(5) for entitlement to SE. However, the CDS agreed that the CAF bore some responsibility for the grievor having been paid Separation Expense given that the grievor had been honest with his career manager and the DCBA Relocation Adjudication Section regarding his situation. As such, pursuant to his authority under QR&O 208.52, the CDS waived the grievor's single-quarters charges in full since he maintained a residence at this original place of duty and waived a portion of the ration charges since the grievor spent non-working time with his children, away from his post.

The CDS agreed with the Committee that, in general, it was open to the CAF to make a recommendation to the TB for a remission of an overpayment, but did not find that this was appropriate in the grievor's case as collection of the debt would not be unjust, unreasonable or contrary to the public interest pursuant to the Financial Administration Act. The CDS noted that remission orders are rare and neither practical nor feasible for overpayments made to CAF members.