Definition of 'primary caregiver' and 'principal residence' for the Agent Orange ex gratia payment

The Agent Orange Ex gratia payment was established by Order in Council (SI/2007-87 and SI/2010-96). The Order in Council defines 'primary caregiver' and 'principal residence' as follows:

"primary caregiver" in relation to an individual, means the adult person who, immediately before the individual died,

1. was primarily responsible, without remuneration, for ensuring that care was provided to the individual (emphasis is our own); and
2. for a continuous period of at least one year, resided in the principal residence of the individual and maintained the individual or was maintained by the individual (emphasis is our own) http://gazetteducanada.gc.ca/archives/p2/2007/2007-10-03/html/si-tr87-eng.html

Veterans Affairs Canada defines "primary caregiver" and "principal residence" as follows:

The definition of a "primary caregiver" means you were the adult who, at the time of death, was primarily responsible for caring for an eligible individual and you did not receive a wage for providing this care. You must have lived in the same home together for an on-going period of at least one year prior to their death and you must have provided financial and emotional support to him or her, or have received that same support from him or her. http://www.veterans.gc.ca/eng/services/pensions/orange/qa_qr#01

A primary caregiver is defined as an adult who:

1. was primarily responsible for caring for the individual, at the time of death (emphasis is our own);
2. was not receiving a wage for providing this care;
3. was living in the same home as the deceased individual for an on-going period of at least one year prior to the individual's death (emphasis is our own); and
4. was providing financial and emotional support to the individual or received that same support from him or her at the time of death.

To be eligible for the ex gratia payment as a primary caregiver, all four of these requirements must be met.

When the Office of the Veterans Ombudsman asked for clarification, the Department provided the following response:

For the purposes of the ex gratia payment a resident is a person who ordinarily lives at a place that has always been, or that has been adopted as, his or her dwelling place, and to which the person intends to return when away from it. A person can only have one place where he or she is a resident and it cannot be lost until another is gained.

Where an individual applies as a primary caregiver of someone who lives at a different address (i.e. a manor or nursing home) the person is not eligible as she/he does not meet either part of the definition of a primary caregiver; that is, immediately before the individuals death she/he was not providing care to the individual and did not live in the primary residence of the individual.

Position of the Office of the Veterans Ombudsman

The Office of the Veterans Ombudsman argues that "ensuring that care was provided" does not mean that the primary caregiver is directly responsible for providing the care. The Office of the Veterans Ombudsman argues that there is no requirement in the Order in Council for the spouses to have lived in the same physical location together, as inferred by the Department's definition. Furthermore, the Office contends that the Department's definition of 'principal residence' is not consistent with the definition of 'principal residence' provided under Section 54 of the Income Tax Act.

Instead of liberally interpreting the Order in Council for the Agent Orange ex gratia payment, Veterans Affairs Canada has applied rules that limit accessibility.