What Is the Canada Pension Plan?

The Canada Pension Plan (“CPP”) is a Federal law which provides that, after a spouse dies, the surviving spouse can receive a survivor’s pension. It establishes a far-reaching, national, compulsory income insurance scheme (the “Plan”).

With some exceptions, Canadian employees and employers are required to make contributions into the Plan. Individuals who experience an event that is likely to affect their income, such as retirement, disability, the death of a wage-earning spouse or the death of both parents, and who satisfy technical qualification criteria are entitled to payments from the Plan.

What is the Survivor’s Pension Under the Canada Pension Plan?

The eligibility for and calculation of the survivor’s pensionis governed by sections 58, 63 and 72 of the CPP.

Under the legislation, anyone over the age of 35 who survives a married or common law spouse who contributed to the Plan is eligible for a survivor’s pension. The amount is calculated partly in relation to the amount of the deceased spouse’s contributions to the Plan. There are other factors: a flat-rate component for survivors under the age of 65, reductions for young survivors, and certain adjustments if the survivor has dependant children. The amount of the pension may also be adjusted downwards if the survivor is receiving other benefits, such as a disability pension.

For instance, under s. 63(6) of the CPP, if an individual has survived two spouses, the amount of the survivor’s pension is capped at one pension. Only the greater of the contributions of the two deceased spouses is used to calculate the survivor’s pension. This reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time.

Widow Challenges Constitutionality of Survivor’s Pension

The applicant challenged the constitutionality of s. 63(6) of the CPP. She had married twice and been widowed twice and sought two survivor’s pensions before the Social Security Tribunal. She alleged that s. 63(6) discriminated against her on the basis of sex, contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”).

The General Division agreed with the widow, finding that s. 63(6) infringed her Charter rights in an unjustified way. However, the Appeal Division reversed the decision, finding no Charter infringement.

The widow therefore applied for judicial review with the Federal Court of Appeal, seeking to quash the Appeal Division’s decision.

Federal Court of Appeal Examines Widow’s Charter Claim

The court began by explaining that to establish that s. 63(6) infringed s. 15(1) of the Charter, the widow had to show that the provision created a distinction based on an enumerated or analogous ground and that it imposed burdens or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.

On the first step of the analysis, the court held that the widow’s claim failed, because the evidence did not establish that s. 63(6) drew a distinction on the basis of sex or denied a benefit, as the provision did not discriminate between men and women.

However, the court then stated that the inquiry did not end there, as s. 15(1) of the Charter requires courts to examine the case beyond the face of a law, explaining:

“A law seemingly neutral on its face may be discriminatory if, in effect, it has a disproportionate, adverse effect on women.”

In fact, one of the widow’s main arguments addressed this concern, as she claimed that the seemingly neutral law in subsection 63(6) indirectly placed women at a disadvantage. She thus claimed adverse effects discrimination or a violation of substantive equality.

Federal Court of Appeal Upholds Canada Pension Plan Provision

The court surveyed the applicable fundamental principles in equality claims under section 15(1), and ultimately rejected the widow’s claim.

The court found that there was no evidence of sex discrimination in the groups to which the law applied and, further, there was no evidence that twice-widowed survivors were in any way disadvantaged compared to once-widowed survivors. Additionally, the court held that, even if it had been proven that s. 63(6) violated the Charter rights in some way, it was saved under s. 1 thereof because it constituted a reasonable limit on such rights.

As such, the court dismissed the widow’s appeal. 

Get Help

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.