# 2012-034 Pay and Benefits, Imposed Restriction (IR), Separation Expense (SE)

Case Summary

F&R Date: 2012–05–24

In September 2011, the grievor, who was on an imposed restriction (IR) and receiving separation expense (SE) benefits was served with a statement of claim for divorce by his wife who, along with the grievor's daughter, continued to reside in the residence at the former place of duty. As a consequence, the grievor's SE benefits were ceased as of 3 January 2012. A request for reinstatement of benefits was denied by the Director Compensation and Benefits Administration on the basis that in accordance with Compensation and Benefits Instructions (CBI) sub-paragraph 208.997(5)(o), the grievor was no longer entitled to SE benefits "after 90 days from the date the spouse was living separate and apart from the member, within the meaning of the Divorce Act".

The grievor argued that the statement of claim for divorce simply indicates that the 12-month minimum time period to be considered living separate and apart has commenced and that the term "former spouse" would therefore not apply until the 12-month period has passed. He stated that the cessation of his SE benefits had placed him under severe financial strain and he requested that his IR status and SE benefits be reinstated.

The Board noted that CBI 208.997 only came into effect on 1 January 2012; consequently, the relevant policy in effect at the time the grievor was served with a statement of claim for divorce was CBI 209.997 which listed the criteria for entitlement to SE as follows: 1) the member is posted to a new place of duty; 2) the member has a dependant as defined in CBI 209.80, who is normally resident with the member at the member's place of duty; and 3) the dependant has not been moved to the member's new place of duty at public expense. In the Board's opinion, under the former policy, the grievor initially met the criteria to be entitled to SE benefits at the time of his posting and there was no change to any of the conditions because of the divorce action taken by the grievor's wife. Additionally, the grievor's daughter was also normally resident with him and had not been moved to his new place of duty, which reinforced the entitlement to SE benefits.

The Board was of the opinion that the grievor still met the conditions for eligibility for SE benefits as described in the revised policy of 1 January 2012 on the basis that although the grievor's spouse was no longer a dependant pursuant to the definition of the new policy, his daughter was a dependant who occupied the principal residence on a full-time basis. However, the Board was of the view that, for the purposes of the Divorce Act, the grievor and his spouse were living separate and apart; the Board concluded therefore that sub-paragraph 208.997(5)(o) applied to the grievor's situation.

The Board found that the grievor was entitled to IR status and SE benefits up to and including March 2012; that being 90 days after CBI 208.997 came into effect on 1 January 2012.

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

The Board further recommended the CDS direct the appropriate authorities to pay SE benefits to the grievor up to and including 30 March 2012.

CDS Decision Summary

CDS Decision Date: 2014–07–29

The CDS agreed with the Committee's findings and recommendation that the grievance be partially upheld, and found that the grievor was entitled to SE when the CBI 208.997 came into effect, on 1 January 2012, until 31 March 2012.