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Family - Common Law. Bihari v. Canada (Attorney General)
In Bihari v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an OAS survivor's allowance JR, here where the main issue was whether parties where in a 'conjugal relationship':
[1] The applicant, Ranjila Bihari, seeks judicial review of a decision of the Appeal Division of the Social Security Tribunal dated August 28, 2024 (2024 SST 1040). The Appeal Division dismissed Ms. Bihari’s appeal from a decision of the General Division of the Tribunal and determined that she was not eligible for a survivor’s allowance under the Old Age Security Act, R.S.C. 1985, c. O-9 (OAS Act).
[2] Ms. Bihari married in 1975. She and her husband separated in 2000 and divorced in 2007. Despite their separation and divorce, they remained close until the ex-husband’s death in 2016. In 2021, Ms. Bihari applied for a survivor’s allowance under the OAS Act. Her application was denied.
[3] The issue before the Appeal Division was whether Ms. Bihari was in a common-law relationship with her ex-husband at the time of his death. The Appeal Division found that while some factors indicative of a conjugal relationship as set out in McLaughlin v. Canada (Attorney General), 2012 FC 556 favoured Ms. Bihari, most did not. The Appeal Division determined that, on balance, the McLaughlin factors did not support the existence of a common-law relationship.
[4] Ms. Bihari accepts the authority of McLaughlin and claims that the decision is unreasonable because the Appeal Division failed to meaningfully engage with the evidence and applied a narrow interpretation of the legal test for a common-law relationship, disregarding her personal circumstances and cultural background.
[5] We disagree. The Appeal Division considered the relevant factors for determining the existence of a common-law relationship and weighed them in light of the evidence adduced by Ms. Bihari. Any mischaracterization of the evidence regarding the deceased’s smoking habits is not sufficiently serious as to render the decision unreasonable and the Appeal Division’s reasons clearly demonstrate that Ms. Bihari’s personal circumstances and cultural background were considered. The Appeal Division did not commit a reviewable error simply because it structured its analysis by grouping the factors differently than in McLaughlin (at para. 15). Such factors are to be applied in a flexible manner (M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 at paras. 59-60). While Ms. Bihari may disagree with the weight given to each factor, it is not our role to reweigh the evidence in order to reach a different conclusion. Ms. Bihari has not met her burden of demonstrating that the decision of the Appeal Division is unreasonable (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).
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