# 2011-083 Pay and Benefits, Imposed Restriction (IR), Integrated Relocation Program (CF IRP), Separation Expense (SE)

Case Summary

F&R Date: 2011–10–31

The grievor was married following the commencement of basic training and prior to being posted to his first place of duty. He contested the recovery of the separation expense (SE) benefits that he had received, some of which he received after having declared that he was in a common-law relationship prior to his marriage. Notwithstanding that a Standing Court Martial (SCM) had found the grievor not guilty of several charges including fraud, the grievor was forced to repay the SE benefits he had received. The Director Compensation and Benefits Administration determined that the grievor did not meet the eligibility criteria to receive SE pursuant to Compensation and Benefits Instructions (CBI) article 209.997, and was therefore not entitled to the benefit.

The grievor argued that the recovery action was based on the assumption that he had committed fraud; an offence for which the SCM had found him not guilty. He argued that it would be unfair to repay money that he did not owe. He further stated that he and his wife had separated due to military reasons, and requested that the recovery action be cancelled.

There was no initial authority (IA) decision on file as the IA was unable to respond within the time limit and the grievor did not agree to grant an extension.

The Board found that, based on the evidence from the time of the grievor’s enrolment to the date of his legal marriage, the grievor was not living in a common-law relationship. As such, the grievor did not have a “dependant” pursuant to the CBI and was therefore not entitled to receive SE for this period.

The Board then considered whether the grievor was entitled to SE following his legal marriage and posting to his new place of duty. After his marriage, the Board found that the grievor had a spouse who was living separate from him for military reasons, and who would normally have resided with him at his new place of duty were it not for the reasons given in his SE application. The Board concluded that the spouse met the definition of “dependant” pursuant to the CBI. The Board also found that the grievor met the criteria of CBI 209.997 requiring that the grievor’s dependant be normally resident with him at his place of duty. Therefore, the Board found that the grievor was entitled to receive SE from the date of posting to his new place of duty until the date of his separation from his spouse.

With regard to the grievor’s reliance on the findings of the SCM that he was “not guilty”, the Board noted that the verdicts showed only that the Military Judge was not convinced beyond a reasonable doubt that the grievor had intentionally committed the offences; not that he was innocent of them. The Board further explained that the issue of entitlement to SE was different from issues of criminal responsibility.

The Board recommended that the Chief of the Defence Staff partially allow the grievance, and that the benefits paid to the grievor after his marriage and new posting not be recovered.

CDS Decision Summary

CDS Decision Date: 2012–09–12

The CDS agreed with the Board's recommendation to partially grant the grievance.