By Brian Forbes, Chair of the National Council of Veteran Associations and Chair of The War Amps Executive Committee
The National Council of Veteran Associations in Canada (NCVA) and our 68 member-organizations have made submissions to government for over 25 years with respect to our concerns vis-à-vis Canadian Armed Forces (CAF) retirees and the infamous “marriage after 60” clawback provision. This continues to be a very important issue within the NCVA Legislative Program, in view of the fact that more and more CAF retirees (including many NCVA members) are living longer and marrying for a second time.
Representing a major development with respect to this crusade, the Standing Committee on Veterans Affairs (ACVA), after many months of study, released its final report in December 2022 on this contentious marriage after 60 provision of the Canadian Forces Superannuation Act (the “gold digger’s clause”).
On balance, the report contains a strong set of recommendations, particularly Recommendation 9 which calls for the Government of Canada to repeal the Marriage after 60 clause in the CFSA and the RCMP Superannuation Act. It goes on at some length to describe the nature of the calculation that should be applied to a newly amended form of pension legislation, effectively abolishing the Marriage after 60 prohibition. The ACVA recommendations are as follows:
Recommendation 1
That the Minister of Veterans Affairs and Associate Minister of National Defence work with the Minister of National Defence and the Minister of Public Safety to issue a declaration that gives a definitive answer to which department is responsible for survivor pension benefits of Veterans.
Recommendation 2
That the Government of Canada immediately table a document explaining in detail the reasons for creating and maintaining clauses denying survivors’ pensions when the relationship began after the pensioner reached age 60 (CFSA and RCMPSA).
Recommendation 3
That the Government of Canada immediately adopt regulations to make the Optional Survivor Benefit (OSB) available to both common-law spouses and legally married spouses.
Recommendation 4
That the department responsible for pension benefits return to the Veteran any funds that were put aside through the Optional Survivor Benefit program, upon the death of the spouse of the Veteran, if the spouse passes away before the Veteran.
Recommendation 5
That the Department of National Defence and the Department of Public Safety take vigorous action to ensure that members of the Canadian Armed Forces and of the Royal Canadian Mounted Police have all the necessary information about their pension plan, and have access to financial advice to make the most informed financial decisions before they retire.
Recommendation 6
That Veterans Affairs Canada use the research and data provided by Statistics Canada and the Canadian Institute for Military and Veteran Health Research to identify survivors and immediately distribute the $150 million Veterans Survivors Fund, focusing on those most in financial need, and publicly provide the formula and calculations for the funding allotment.
Recommendation 7
That the Government of Canada recognize that pension benefits must be modernized to ensure that the survivors of CAF and RCMP Veterans, mostly senior women, are not pushed into a life of poverty because their partner died without being able to leave them survivor pension benefits.
Recommendation 8
That the Minister of Veteran Affairs work with the RCMP and the RCMP Veterans Association to ensure survivors of RCMP Veterans will receive an equitable portion of the Veterans Survivors Fund.
Recommendation 9
That the Government of Canada repeal the “marriage after 60” clause in both the Canadian Forces Superannuation Act and the Royal Canadian Mounted Police Superannuation Act, and make survivor benefits proportional to what the pensioner was receiving rather than the unreduced benefit that they would have received, and as needed, adjust the contribution rates and percentage applicable to the survivor benefit to adequately reflect the resulting reduction in financial liability.
As it currently stands, CAF retirees contribute to the Canadian Forces Superannuation account throughout their entire career and one of the important benefits is a 50 percent Survivor’s Benefit, save and except in those cases where the CAF retiree marries after age 60. In order to provide their new spouses any form of “Survivor Benefit,” veterans over 60 must exercise the statutory option to reduce their own Canadian Forces Superannuation in a commensurate manner.
The resulting impact on the financial well-being of veterans over the age of 60 and their new spouses is often quite distressing, as the married couple in question is frequently faced with a difficult decision which in many cases can lead to economic hardship. Furthermore, should the veteran opt for providing a Survivor’s Benefit for his or her new spouse, the immediate financial circumstances of the couple may be detrimentally affected as a consequence of the loss of current income. Moreover, utilizing this financial strategy in a situation where the new spouse predeceases the veteran, the funds contributed to the Survivor’s Benefit are lost as they are not returned to the veteran but instead recouped by the government.
Veterans and their new spouses should not be asked to confront this incredible conundrum. Without a crystal ball, the new couple has no way of knowing how their future lives will unfold and what the impact of their financial determination will be on each of them.
This archaic “gold digger’s clause,” in our respectful submission, should have no place in Canadian veterans’ legislation. It is of interest historically that, over 100 years ago when Canada’s Militia Pension Act was passed in 1901, it contained a section now referred to as the “gold digger clause” which authorized the government to exercise a discretion to deny benefits to widows deemed “unworthy.” As a result, a widow of that period could not receive Survivor Benefits if she was more than 20 years younger than her husband or if he had married her after the age of 60. This antiquated legislation was apparently drafted this way to protect the Canadian Military from “death bed marriages,” which were of known concern in the United States in relation to younger women marrying veterans of the 1865 Civil War for their pensions!
As a matter of advocacy background, over the last two decades both Conservative and Liberal governments have made unfulfilled promises and commitments to NCVA and various veteran stakeholders to expunge this punitive measure from the CFSA. Ministers of National Defence and Veterans Affairs of various political stripes have declared their intent to amend the legislation only to be overruled by the financial hierarchy of government.
In addition, a number of Private Member’s Bills/Petitions to Parliament have been initiated to rectify this unacceptable situation with no success, notwithstanding the grave discrimination that remains in the statute. In the current context, Rachel Blaney, the NDP Veterans Critic, has taken a leadership role through a Private Member’s Bill she has presented to Parliament in recent months.
It is noteworthy that the Liberal 2015 election platform specifically indicated that it was the intention to “…eliminate the marriage after 60 clawback clause so that surviving spouses of veterans receive appropriate pension and health benefits.” Indeed, several Mandate Letters directed by the current Prime Minister to various Ministers of National Defence and Ministers of Veterans Affairs/Associate Ministers of National Defence have been issued with no legislative action achieved in this context.
Furthermore, the 2019 federal budget contained a rather nebulous provision which was ostensibly proposed to address this longstanding concern.
The 2019 budget provided:
“To better support veterans who married over the age of 60 and their spouses, Budget 2019 announces a new Veterans Survivors Fund committing $150 million over five years starting in 2019-20 to VAC. With these funds, the Government will work with the community to identify impacted survivors, process their claims, and ensure survivors have the financial support they need. The Government will announce additional details on this measure in the coming months.”
Following this budget announcement, NCVA made continued enquiries with Veterans Affairs Canada which resulted in the rather shocking conclusion that no one in the department was aware of the substance of any legislative provision that actually would apply to this new policy. Our further communication recently with Ministerial officials has been to little avail, save and except that we were advised that a new policy was under consideration and further research was being carried out. The mystery remains as to why the Government did not simply eliminate the marriage after 60 clawback disqualifying provision in the CFSA as opposed to proposing a brand-new policy with little or no substantive detail.
NCVA is recommending that the Minister of Veterans Affairs/Associate Minister of National Defence and/or the Minister of National Defence immediately adopt the proposals contained in the Standing Committee report of December 2022 titled “Survivor Retirement Pension Benefits (Marriage After 60)” and remove Section 31 of the Canadian Forces Superannuation Act. This will allow the spouse of a Canadian Armed Forces retiree marrying after 60 to be eligible for Survivor’s Benefits without reducing the amount of superannuation in payment to the retiree in accordance with the Liberal Party’s election platform of 2015.
NCVA further recommends that, in addition to the elimination of the “gold digger’s clause” in the CFSA, VAC should establish a realistic and effective Veterans Survivors Fund to address the inequities already created by the current legislation. The following principles should be applied:
1. In the event the veteran who has married after the age of 60 has exercised the option for a spousal benefit (OSB) under the CFSA, the amount of reduction in the veteran’s current income in so doing should be reimbursed by VAC.
2. Should the veteran have not opted for the Survivor’s Benefit, the amount of pension that the surviving spouse would have received if the “gold digger’s clause” was removed should be paid to the surviving spouse by VAC under this new Veterans Survivors Fund
In conclusion, NCVA submits that it is incumbent upon the government to remove this inequitable “gold digger’s clause” from the CFSA so as to ensure that veterans over 60 who remarry are able to enjoy their remaining years with appropriate financial security.
In our considered view, it is time for the government to get its act together, live up to its commitments, and take the necessary remedial steps to rectify this longstanding injustice. After many years of tortuous advocacy, veterans and their spouses deserve nothing less!
