Case # 2012-090

Dependants, Family Care Assistance (FCA) , Family Care Assistance / Definition of Dependant, Normally Resident - Interpretation for Benefit purposes

Case Summary

F&R Date: 2012–11–09

The grievor, a member of the Regular Force (Reg F) with two children, was deployed at the same time as the spouse from whom she had seperated, also a member of the Reg F.

The grievor complained that the Director Compensation and Benefits Administration (DCBA) unfairly denied her the Family Care Assistance (FCA) benefit because she and her estranged spouse had joint custody and were, therefore, each considered single without dependants.

As redress, the grievor requested that her claim for the FCA be approved and that the FCA policy be reviewed in order to better serve the needs of Canadian Forces parents with joint custody.

The grievor argued that, although there was joint custody, she had the primary care and residence of the two children. She explained that the terms “Joint” and “Shared Custody” do not necessarily mean that the care, residence and financial costs of children are shared equally among the parents. The grievor pointed out that she had the care and custody of her children for 12 out of every14 days and that they did not stay at their Father’s house because all their “stuff” was at her house. She added that she had a bedroom for each child, that 90% of their toys were in her house and that the babysitter lived nearby.

There is no Initial Authority decision because the grievor did not grant the 12-month extension requested by the Director General Compensation and Benefits (DGCB) to respond.

Compensation and Benefits Instruction 209.80 defines a dependant as being “normally resident”. The Board disagreed with the DCBA position that a dependant cannot be considered as being “normally resident” in cases of joint or shared custody, noting that the term “joint custody” is often used to describe the sharing of responsibility and decision making between parents regardless of where a child resides and is not indicative of how much a dependant may normally reside with a parent.

The Board noted that previous Chief of the Defence Staff (CDS) decisions have stated that “normally resident” is not simply a mathematical calculation of the amount of time spent with the parent. Rather, there are additional factors to be considered such as: whether the child has a room in the member’s residence; whether they have personal belongings that remain there; whether they go to and from school from that residence; and whether they have friends in the area. The CDS has stated that these conditions, when looked at as a whole, will determine whether the child is normally resident with a member, regardless of the actual amount of time spent with the member. Consequently, in determining whether the definition of dependant applies to a particular child, the decision-maker must examine the specific residency arrangements in place for the child, and not just whether a member has “joint custody”.

In applying these same principles, the Board found that the grievor’s children were “normally resident” with her and that she was entitled to the FCA for the period she was deployed.

The Board recommended that the CDS uphold the grievance.

The Board further recommended that the CDS direct the DGCB to amend their website to correctly reflect the interpretation of “normally resident” adopted by the CDS.

CDS Decision Summary

CDS Decision Pending