# 2012-021 Pay and Benefits, Administration of Imposed Restriction (IR) and Separation Expense (SE), Overpayment, Recovery of Overpayment/Debt Write-Off

Case Summary

F&R Date: 2012–05–31

The grievor was paid Separation Expenses (SE), and it was subsequently determined that he was not entitled. He challenged the decision to recover the amount of SE received. In redress, he asked that his imposed restriction be authorized, which would free him from the obligation to repay the amounts claimed for an error he did not commit. He also claimed reimbursement of the three months of rent he had to pay when his lease was terminated, plus Commuting Assistance (CA).

The Initial Authority (IA) concluded that the grievor was not eligible for SE since he had moved his dependents and household goods and personal effects for personal reasons, not for reasons of duty. Moreover, since these people were no longer living permanently with him in his primary residence at his place of duty, they had lost their status as dependents. The Board disagreed with these interpretations, arguing that for the grievor to be eligible for SE his circumstances must meet the requirements of paragraphs 209.997(2) and (5) of the Compensation and Benefits Instructions (CBI).

The Board noted that sub-paragraph 209.997(2)b) of the CBI states nowhere that a member’s dependents must be living with him/her at the time of their posting in order to be eligible for SE. And, according to the definition of “dependent” at sub-paragraph 209.80(3)b) of the CBI, it is sufficient for persons to be living “normally” with the member at his or her place of duty to be considered dependent on him/her.

The Board also noted that the Chief of the Defence Staff (CDS) had pointed out in one of his decisions that article 209.997 of the CBI was totally silent on the concept of primary residence and that the fact that a member of the Canadian Forces (CF) was moving his/her dependents after being posted to a new place of duty did not automatically disqualify him in any way from receiving SE.

The Board concluded that the grievor’s situation, after he was posted to his new unit, met the eligibility criterion set forth at paragraph 209.997(2) of the CBI, namely that the dependents “normally” live with him at his place of duty.

The Board also explained that SE was a Treasury Board benefit designed to compensate CF members, under certain conditions, for additional expenses arising from a temporary separation caused by a relocation. It pointed out that the conditions for obtaining this benefit are set forth at paragraph 209.997(5) of the CBI.

The Board observed that the reason provided by the grievor, and accepted by the CF, is one of the reasons specified in sub-paragraph 209.997(5) (c) of the CBI.

Since the grievor’s situation met the requirements of 209.997(2) and (5) of the CBI, the Board concluded that he was eligible for SE.

The Board accordingly recommended that the CDS take measures to provide for the restoration to the grievor of a sum equivalent to SE, covering the period from the date when the grievor commenced his duties at his new unit to the date when he returned to live with his family.

The Board determined that the grievor’s situation was not consistent with any of the scenarios outlined at paragraph 209.28(2) of the CBI and thus concluded that the grievor was not eligible for the CA.

The Board noted that the IA had studied whether the grievor was entitled to special commuting assistance (SCA), although he failed to mention this in his grievance. The Board indicated that the grievor might be eligible for the SCA for a certain period but stated that if this was the grievor’s wish he should apply for the benefit through his chain of command.

Since the grievor paid rent and since the renter, in exchange, allowed him use of the building, the Board was of the opinion that the amounts claimed by the grievor for rent are not reimbursable, since they cannot be qualified as a penalty. The Board accordingly recommended that the CDS partially uphold the grievance.

CDS Decision Summary

CDS Decision Pending