Why you can only get one CPP survivor's pension, even if you’re twice-widowed
Jamie Golombek: Woman argued limiting her to one survivor’s pension is discriminatory, but the court didn't agree
If your spouse or common-law partner passes away, you, as the surviving spouse, may be entitled to collect a survivor’s pension from the Canada Pension Plan. But if the surviving spouse remarries and then the second spouse dies, can the surviving spouse receive two survivor’s pensions?
The short answer is no. Indeed, this scenario was contemplated by legislators who inserted a special rule in the CPP legislation that limits the surviving spouse to one survivor’s pension, albeit the higher of the two.
But does this rule discriminate against women on the basis of sex, contrary to the Canadian Charter of Rights and Freedoms? That question recently came before the Federal Court of Appeal in a case heard by teleconference in June 2021.
The claimant, a woman now in her 90s, sought to receive two survivor’s pensions, one from each of her late husbands. After her claim was initially denied, she appealed to the Social Security Tribunal (SST) — General Division, which agreed with her in a 2019 ruling, finding that this special rule did infringe her charter rights.
The government appealed this ruling and, in 2020, the SST — Appeal Division reversed the lower division’s finding, concluding that there wasn’t any charter infringement. The claimant then appealed this decision to the appellate court.
The claimant was initially married in 1961 and her husband died in a helicopter crash in 1969. She received a CPP survivor’s pension, but lost it when she remarried in December 1973. Her CPP survivor’s pension was terminated because, at that time, a survivor lost their survivor’s pension if they remarried.
Fast forward to 1989, and her survivor’s pension was reinstated because of amendments made to the CPP rules that permitted a remarried spouse to continue to receive a survivor’s pension.
In 2012, the claimant’s second husband died and she applied for a second survivor’s pension. But, as the special rule referred to above states, she was only permitted to receive one survivor’s pension and today, therefore, she is receiving a survivor’s pension only in relation to her second husband (which was the larger pension).
In court, the claimant’s position was that the rule limiting her to one survivor’s pension discriminates against her on the basis of sex and marital status, arguing that the rule “creates a distinction based on sex because women are overwhelmingly and disproportionately represented in the group that receives a survivor’s pension. It creates a distinction based on marital status because it prevents women who have been widowed more than once from collecting more than one survivor’s pension, even if all of their spouses contributed to the CPP. It is discriminatory because it ignores and denigrates her contributions to her first marriage.”
The government objected, arguing that the claimant “failed to establish that the provision has an adverse discriminatory effect.” It acknowledged that the rule impacts more women than men, but argued that this alone does not make it discriminatory. The rule makes no distinction between men and women and the claimant wasn’t eligible for two survivor’s benefits because she falls outside “the reasonable limits of the benefit. All applicants, regardless of sex, are limited to one benefit.”
The claimant argued that she would be entitled to both survivors’ pensions if not for this special rule, noting that it “seems strange” that her first husband’s survivor’s pension has been taken away. She reasoned that “people who are twice widowed like her are being denied the benefit of both survivor’s pensions even though there have been CPP contributions from both of their former spouses … It is demeaning that her first survivor’s pension is entirely wiped out.”
The appellate court reviewed the facts of the case, prior jurisprudence and paid particular attention to the nature of the CPP itself. The court characterized the CPP as a “far-reaching, national, compulsory income insurance scheme,” calling it a “contributory plan,” not “a social welfare scheme.” Most Canadian employees and employers are required to make contributions into the CPP and 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 various technical criteria, are entitled to payments from the CPP.
The court noted that the CPP, however, was “never intended to be comprehensive or meet the needs of all contributors in every conceivable circumstance. Rather, it provides partial earnings replacement in certain circumstances … It is not anything like a guaranteed annual income. It is more like modest help for recipients to meet their basic needs.”
Anyone older than 35 who survives a married or common-law spouse who contributed to the CPP is eligible for a survivor’s pension. The amount is based on a number of factors, one of which is that if an individual has survived two spouses, the amount of the survivor’s pension is capped at one pension. “This reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time,” the court noted.
The court then reviewed whether the rule limiting someone to collect only one CPP survivor’s pension is discriminatory based on sex. The claimant argued, among other things, that this rule draws a distinction based on sex because the majority of people who are twice-widowed are women.
But the court noted the evidence showed that the demographics of once-widowed survivors and twice-widowed survivors are nearly identical: 74.7 per cent of first-time survivors were women, whereas 73.9 per cent of second-time survivors were women.
The court concluded that the rule limiting a claimant to only one survivor’s benefit was not discriminatory. The CPP survivor benefit “was only ever intended to make-up for the loss of one wage-earner and it would be unfair to some recipients if others could receive simultaneous benefits for two wage-earners. Baked into this is a concern for the long-term health of the plan,” the appellate judge wrote in a unanimous decision of the three-judge panel. “Allowing individuals to stack survivor’s pensions on top of one another would undermine the insurance nature of the plan and may place survivors of more than one spouse at an advantage as compared to survivors of only one spouse.”