SE and IR for a reconciled MSC

[Lardofthedance]

    A married service couple are having extremely personal difficulties at a time when one member is posted. They did not divorce or seperate. They had extremely private circumstances to deal with. They reconcile their differences while one member is posted away with the children and HG&E. Why would they be not elidgable for SE and IR status and why, if something like this happens would CF some personal go to the extreme to ensure these benefits are not an option for this family? True story and it's a battle.

 

[PMedMoe]

If they were not divorced or separated when the member was posted, I would think that they would be entitled.  Ask a clerk, and ask for solid references as to why not.  The only reason I could think of, is if a member moves HG&E without authority.

Check these:

http://www.cmp-cpm.forces.gc.ca/dgcb-dgras/ps/db-as/faq/se-faf-eng.asp

http://www.cmp-cpm.forces.gc.ca/dgcb-dgras/pub/cbi-dra/208-eng.asp#sec-208-997

 

[Lardofthedance]

  The orders and directives are there and supportive, and throw the CF's commitment to families on the plate as well.  The problem is conjecture and CF members trying to be lawyers.

 

[PMedMoe]

Conjecture is not regulation.  Ask the people who are supposed to know (RSM Clerks), not the wannabe lawyers.

 

[Nfld Sapper]

    A married service couple are having extremely personal difficulties at a time when one member is posted. They did not divorce or seperate. They had extremely private circumstances to deal with. They reconcile their differences while one member is posted away with the children and HG&E. Why would they be not elidgable for SE and IR status and why, if something like this happens would CF some personal go to the extreme to ensure these benefits are not an option for this family? True story and it's a battle.

Something don't smell right here......

Ask the people who are supposed to know (RSM Clerks), not the wannabe lawyers.

I concur.

 

[aesop081]

As usual, i am sure that there is more to this than just what the OP is saying here.

 

[Lardofthedance]

  Yes there is more, but that's where pricvacy comes in. The facts are as they are.

 

[DAA]

From what I hear, there is suppose to be a clarification message coming out shortly that deals with IR/TR and MSC in particular.  The latest round of changes to these regulations neglected to address this specific issue.  Based on the "old" regulations, once you become part of an MSC and are not geographically co-located, you would have been entitled to the benefits of "low rate" SE (ie; Free R&Q and the daily amount).

As part of a new MSC, you do not have the ability to colocate with your spouse and that in itself should be considered as "service reasons".  As opposed to only one member being in the military, in which case you do have the ability to move your spouse to your current location.

Given the limited info which is provided, my best guess would be that you were originally receiving SE benefits, then the benefits were ceased and now you are trying to restart them.  In which case, it should be no different than two service members, not geographically co-located and being married for the first time.  One of which should be entitled to claim SE benefits.

Like I mentioned previously, the new regulations make no mention of Married Service Couples.  Hence, today, where one party of an MSC is posted and the other isn't.  The one posted actually has to request IR, believe it or not.....

 

[PMedMoe]

In which case, it should be no different than two service members, not geographically co-located and being married for the first time.  One of which should be entitled to claim SE benefits.

Is that one of things they're considering changing?  I only ask because as it stands right now:

There is no entitlement to SE if any of the following conditions are satisfied......

the member marries or forms a common-law partnership, after the change of strength date;

(See the second link in my first post).

So, if the people weren't co-located to begin with, SE can't be claimed when they get married. 

 

[armyvern]

Is that one of things they're considering changing?  I only ask because as it stands right now:

(See the second link in my first post).

So, if the people weren't co-located to begin with, SE can't be claimed when they get married.

Except, there's children involved so I don't know how that would affect it. You also need one year of co-habitation to declare common-law status, but that status is immediately grantable upon the birth of a dependant. Wierd anyway. Something seems off. I find it truly interesting that the CF would post a married, apparently never seperated, married service couple away from each other without IR benefits. I'm thinking the marriage / kids occured after COS dates just as you state.

The rule regarding the non-entitlement to SE if you marry or become common law after the COS date has been there for many years however.
_______________________

I think the "change" that DAA has suggested is in the works has more to do with the new rules that state that members must actually live in the same residence together for a full one year period (unless child as per above) in order to be declared common law.

The issue there is that you could see (and there is) military couples who have lived together for 11 months and then see one posted away ... the new rules do NOT allow this couple to be granted common law status under the "seperation due to military reasons". Thus, even though they may own a house together etc, as they did not actually reside with each other for the full 12 month period - no status is granted, no SE is payable or due ... and careers treats them both as completely and utterly single members as that is what their MPRRs would read. They would then need to find themselves posted somehow to the same location at some point in the future to begin actually living together again for another full one year period to be able to declare.

If one was married to a civilian, a move for a month to hit that 1 year mark is possible and more-than-likely to occur. That's impossible for two CF members.

It is a new rule that did not consider the unique circumstances that MSCs (apter: those who are on their way to becoming MSCs) find themselves in; it's an impossibility.

 

[DAA]

The rule regarding the non-entitlement to SE if you marry or become common law after the COS date has been there for many years however.
_______________________

I think the "change" that DAA has suggested is in the works has more to do with the new rules that state that members must actually live in the same residence together for a full one year period (unless child as per above) in order to be declared common law.

The issue there is that you could see (and there is) military couples who have lived together for 11 months and then see one posted away ... the new rules do NOT allow this couple to be granted common law status under the "seperation due to military reasons". Thus, even though they may own a house together etc, as they did not actually reside with each other for the full 12 month period - no status is granted, no SE is payable or due ... and careers treats them both as completely and utterly single members as that is what their MPRRs would read. They would then need to find themselves posted somehow to the same location at some point in the future to begin actually living together again for another full one year period to be able to declare.

If one was married to a civilian, a move for a month to hit that 1 year mark is possible and more-than-likely to occur. That's impossible for two CF members.

It is a new rule that did not consider the unique circumstances that MSCs (apter: those who are on their way to becoming MSCs) find themselves in; it's an impossibility.

The new regulations lumped everyone into the same category, which they should never have done.  In the past, if marriage or common-law status occurred "after" your COS date, there was no entitlement to SE benefits, except in the case of Married Service Couples.  For MSC's, one party was automatically entitled to the benefits of Low Rate SE but as it stands right now, there is no entitlement.

When you think about, if you married a non-military member, it is entirely within your ability to relocate them to your current location.  But in the case of married service couples, you cannot relocate either of the parties and this was deemed to be as a result of "service reasons", hence, the automatic entitlement to SE benefits.

It is definitely an issue which needs to be addressed and hopefully it will be, sooner rather than later.  Nevertheless, the op should submit a request to their supporting URS requesting Low Rate SE as part of a Married Service Couple and your supporting URS should be smart enough to staff the request to DCBA for review.

As far as the issue of common-law status is concerned, once you begin co-habitation, the clock starts ticking.  If your partner is also military and one of you is posted prior to the 12 month cohabitation period, then the clock should "reasonably" continue to tick.  I have seen a case such as this in the past and CL status was granted.  Why did DND pick 12 months?  Who knows, possibly a mean average based on the various provincial laws across Canada or to prevent rampant CL requests.  Nevertheless, I have also seen individuals cohabitating for short of the 12 months, get a posting instr, request CL Status, have it denied by their CO, then request a JAG review, resulting in approval.

 

[Lardofthedance]

  Thanks DAA for the info regarding possible changes.

 

[Nfld Sapper]

Why did DND pick 12 months?  Who knows, possibly a mean average based on the various provincial laws across Canada or to prevent rampant CL requests.  Nevertheless, I have also seen individuals cohabitating for short of the 12 months, get a posting instr, request CL Status, have it denied by their CO, then request a JAG review, resulting in approval.

Might have to do with CRA definition of Common Law?

Common-law partner
This applies to a person who is not your spouse (see above), with whom you are living in a conjugal relationship, and to whom at least one of the following situations applies. He or she:


a) has been living with you in a conjugal relationship for at least 12 continuous months;

b) is the parent of your child by birth or adoption; or

c) has custody and control of your child (or had custody and control immediately before the child turned 19 years of age) and your child is wholly dependent on that person for support.

In addition, an individual immediately becomes your common-law partner if you previously lived together in a conjugal relationship for at least 12 continuous months and you have resumed living together in such a relationship. Under proposed changes, this condition will no longer exist. The effect of this proposed change is that a person (other than a person described in b) or c)) will be your common-law partner only after your current relationship with that person has lasted at least 12 continuous months. This proposed change will apply to 2001 and later years.

Note
The term "12 continuous months" in this definition includes any period that you were separated for less than 90 days because of a breakdown in the relationship. For instance, if you and your spouse or common-law partner were separated for two months during the year, but reconciled before the end of the year, you are still considered to be married or living common-law for income tax purposes.

 

[armyvern]

The new regulations lumped everyone into the same category, which they should never have done.  In the past, if marriage or common-law status occurred "after" your COS date, there was no entitlement to SE benefits, except in the case of Married Service Couples.  For MSC's, one party was automatically entitled to the benefits of Low Rate SE but as it stands right now, there is no entitlement.

When you think about, if you married a non-military member, it is entirely within your ability to relocate them to your current location.  But in the case of married service couples, you cannot relocate either of the parties and this was deemed to be as a result of "service reasons", hence, the automatic entitlement to SE benefits.

It is definitely an issue which needs to be addressed and hopefully it will be, sooner rather than later.  Nevertheless, the op should submit a request to their supporting URS requesting Low Rate SE as part of a Married Service Couple and your supporting URS should be smart enough to staff the request to DCBA for review.

As far as the issue of common-law status is concerned, once you begin co-habitation, the clock starts ticking.  If your partner is also military and one of you is posted prior to the 12 month cohabitation period, then the clock should "reasonably" continue to tick.  I have seen a case such as this in the past and CL status was granted.  Why did DND pick 12 months?  Who knows, possibly a mean average based on the various provincial laws across Canada or to prevent rampant CL requests.  Nevertheless, I have also seen individuals cohabitating for short of the 12 months, get a posting instr, request CL Status, have it denied by their CO, then request a JAG review, resulting in approval.

The rule on no SE for after COS date has been there for quite a few years. Even for MSCs. It was there in 2009 of that I am absolutely certain ... and I am reasonably certain it was there in 2006 as well.

 

[DAA]

The rule on no SE for after COS date has been there for quite a few years. Even for MSCs. It was there in 2009 of that I am absolutely certain ... and I am reasonably certain it was there in 2006 as well.

Here is the exact wording from the previous regulations prior to Jan 12 with regards to Married Service Couples.

"Art 2.3 - Service Couple (SC) Married or Common Law after Change of Strength (COS) Date.  When the married or common law partnership recognition is after the COS date, the beneift is limited to the low rate of SA.  There is no reimbursement for accommodation or meals.  Only one member of the SC may claim SA at any time, while the other possesses the HG&E in their principal residence."

In one of my previous posts above, I believe I said that members would be entitled to free R&Q but that is not the case.  Entitlement is for the SE portion only.

 

[armyvern]

Here is the exact wording from the previous regulations prior to Jan 12 with regards to Married Service Couples.

"Art 2.3 - Service Couple (SC) Married or Common Law after Change of Strength (COS) Date.  When the married or common law partnership recognition is after the COS date, the beneift is limited to the low rate of SA.  There is no reimbursement for accommodation or meals.  Only one member of the SC may claim SA at any time, while the other possesses the HG&E in their principal residence."

In one of my previous posts above, I believe I said that members would be entitled to free R&Q but that is not the case.  Entitlement is for the SE portion only.

Yes, I know. I am one who was subject to above. 

You are preaching to the choir; no accommodations etc was also the rule in 2009 ... when I was subjected to it.

 

[Pat in Halifax]

I am only contributing here as I (sort of) went through this. The 'entitlement' for SE would be the same whether a MSC or not (Though I think the 'level' is different). 10 years ago (rules may have changed) I was separated from my wife with a divorce pending. I made this clear to the Ship's Office AND to a lawyer - I was entitled to SE. When my lawyer notified me my divorce was finalized (ironically on Valentine's Day 2002!), my SE stopped for the remainder of the deployed period.

 

[PMedMoe]

10 years ago (rules may have changed) I was separated from my wife with a divorce pending. I made this clear to the Ship's Office AND to a lawyer - I was entitled to SE. When my lawyer notified me my divorce was finalized (ironically on Valentine's Day 2002!), my SE stopped for the remainder of the deployed period.

This actually makes sense.  CBI 208.997 has the definition of a spouse as "in relation to a member, does not include a spouse who is living separate and apart, within the meaning of the Divorce Act, from the member".  The Divorce Act defines a spouse as "either of two persons who are married to each other".

My interpretation of that (and of course, I could be wrong) is that even if a couple is legally separated, they are still married.  Not to mention, despite the fact of being separated (legally or not), the person on IR (or receiving SE) is still partly (or wholly) financially responsible for their primary residence.

I just wonder if the powers of authority would read it the same. 

 

[CountDC]

wait for it - DCBA is doing briefs already and CANFORGEN's are staffed.

The powers of authority do not see it the same way.  Just to clarify  - the power of authority is TB not DND (that is stressed a lot in the brief)

There is a little known regulation in the books that require all us to notify our chain of command of any changes in our family situation including if we seperate.  The moment we seperate we are now considered single and all bets are off.  As explained to us in the brief if you are on IR and seperate then your IR is ceased. 

After the brief i really felt sorry for the single parents and MSC.  Lots of little things that in basic terms of my own screws them.  Don't have full custody of the child?  Lost of benefits.  Have someone over 18 living with you?  Lost of benefits.  On IR and your spouse moves?  careful - you may have a lost of benefits.

Apparently over the years we have seen a lot of things come out as approved pending TB approval which should not have been done.  Nothing is approved until TB has actually signed off on it.

 

[PMedMoe]

I'd be interested in seeing the TB interpretation then.  Just out of curiosity.

As far as parents who don't have full custody of children and spouses moving while one of them is on IR, I knew about those and don't see an issue with no and/or loss of benefits.  A couple who is separated but still legally married, yes, there I see an issue.