OTTAWA – Samantha MacDougall is staring down a tough road.
Late next month, she’s scheduled to appear before the social security tribunal, the final appeals body on benefits decisions, to argue the government was wrong to deny her Canada Pension Plan survivor benefits.
Anyone under age 35 who loses a spouse only receives CPP survivor benefits if they have children or a disability. Otherwise, they must wait until they reach age of 65 to collect benefits.
MacDougall was 30 when her partner Greg Weeks died in 2013. Her two stepsons were too old to be considered dependents, nor did she have a disability.
She believes the age requirement is deeply flawed and unconstitutional.
“It makes me mad — the policy and the way it’s formed,” MacDougall said. “It’s discriminatory, based on the fact the formula is based on age. I don’t know how they can argue it’s not.”
She has been warned the tribunal is unlikely to side with her and that her best hope rests with the country’s top court — and even that may be a long shot.
The age rule is in place because a survivor with no children or disability ought to be able to adapt financially to the loss of a partner by going back to work, the government argues. The survivors benefit, by design, provides increased benefits to those deemed least able to recover financially.
The age limit was set at 35. MacDougall will have to wait until she is 65 to receive roughly three-fifths of what Weeks would have been eligible for in retirement, adjusted for inflation from the date of death.
Weeks, a former army corporal, was 50 when he died of cancer four years ago.
MacDougall filled out all the forms the funeral home suggested, including one for CPP survivor benefits. The government rejected her claim.
When she received the rejection letter, MacDougall said she was angry and confused. As she went prepared her appeal and researched the issue deeper, MacDougall said she grew more frustrated: “It made less sense, the more reading I did.”
For two decades, the federal government has relied on a Supreme Court of Canada ruling that found the age restriction was not discriminatory, even though the delay in receiving the payments and the reduced value of the benefit denied widows and widowers like MacDougall equal treatment under the law.
The ruling seeps into documents that make up MacDougall’s file before the tribunal. She allowed The Canadian Press to review the documents filed as part of her appeal.
In submissions to the tribunal, the government argues the payments were not designed to “remedy the immediate financial need experienced by widows and widowers.”
Instead, they were targeted to older widows and widowers to help them meet their basic needs, because they were less likely to be in the workforce and able to pay the bills on their own.
Younger widows had fewer impediments to finding work and were generally in a better position to independently replace a deceased spouse’s income over the long run, the government says.
The legal advice MacDougall received from law students working at Dalhousie University’s legal aid clinic is that she would have to convince the Supreme Court to reverse its decision in order to have the rule changed. The tribunal only ensures the current law is being properly enforced and doesn’t have the power to rewrite regulations.
“But demonstrating a distinction that amounted to discrimination has been difficult,” the law students wrote in an April 26, 2016 letter to MacDougall.
Instead of arguing age discrimination, the students came up with a different idea: MacDougall could argue sex discrimination because the top court has noted that women are more likely to find themselves living in poverty after marital separation.
“Although the (CPP) legislation does not target women directly, it might be worth exploring whether it disproportionately negatively impacts on women,” the letter reads.
But a constitutional challenge is no easy, or cheap task. MacDougall has had to do all the legwork so far on her own. She said she doesn’t know how much further she will take her appeal if she loses before the tribunal.
She might not go any further if she can get satisfactory explanations for all her questions.
But for now, she’s taking it one step at a time.
“This is a constitutional appeal that it affects all Canadians. I shouldn’t even be the one having to fight this. Everybody should have an input.”
Note to readers: This is a corrected story. The hearing, originally scheduled for Tuesday, has been rescheduled for late July.