Same-sex spouses: Entitlement to a surviving spouse's pension under the Québec Pension Plan for a death occurring on or after 4 April 1985

Retraite Québec can now consider applications for a surviving spouse's pension for same sex spouses if the death occurred on or after 4 April 1985. We invite those persons who believe they may now be entitled to a pension to file an application. The amendment to the Act respecting the Québec Pension Plan was made in December 2002, so anyone who filed an application in the past should re-apply if the application was rejected simply because same sex spouses were not being recognized at the time.

The Retraite Québec's decision to consider these applications follows a decision by the Court of Appeal concerning the fact that the definition of spouse provided in the Act respecting the Québec Pension Plan must be interpreted in light of theQuébec Charter of Human Rights and Freedoms and therefore must include homosexual couples. Previously, Retraite Québec had only been recognizing the entitlement of same sex spouses to a surviving spouse's pension since an omnibus amendment to Québec legislation that became law in 1999.

12 months of retroactivity

A surviving spouse's pension under the Québec Pension Plan can be paid retroactively for a maximum of 12 months as of the date the application was received or the date the new application is received, for those persons whose claim was rejected in the past. It is therefore in your best interest to apply as soon as possible. A surviving spouse will be entitled to a pension if the deceased contributed sufficiently to the Québec Pension Plan and if the spouse met the requirements to be considered a de facto spouse at the time of the death.

Questions and Answers

My spouse died in 1987. At the time, I called Retraite Québec. I was told that same-sex spouses were not recognized, so I didn't file an application. Will I be penalized?

• No. whether you filed an application in 1987 or you file one now, the maximum retroactive payment is limited to 12 months as of the new application. You should therefore file your application as soon as possible.

My spouse died in 1980. Can I file an application?

• No. We recognize same sex spouses for deaths occurring on or after 4 April 1985 only.

My spouse died in 1987. At the time, I filed an application for a surviving spouse's pension and it was rejected. Do I have to file a new application?

• Yes. If you are entitled to a surviving spouse's pension, Retraite Québec will pay you a retroactive pension for the 12 months preceding the date your new application is received.

Why can't Retraite Québec consider my first application?

• Old files cannot be reopened. Your first application was rejected and all the recourses possible have since expired. It is the principle of res judicata, that is, matters that have already been decided cannot be raised again. Jurisprudence never has the effect of reconsidering decisions that have already been rendered. However, in order to be fair to those who never filed an application, Retraite Québec has agreed to study applications such as yours if a new application is filed.

Do I have to send documents with my application to prove that we were de facto spouses?

• If you have documents that prove you were spouses, such as a cohabitation agreement, will etc. it would be best to provide them. If not, Retraite Québec may request such documents.

• No. Having a new spouse does not cause you to lose your right to apply for a surviving spouse's pension following the death of your first spouse.

My deceased spouse had a child under age 18. After my spouse died, I continued to care for her child. Can I apply for an orphan's pension?

• Yes. You could have applied for an orphan's pension immediately following the death. Apply as soon as possible.