# 2009-045 Pay and Benefits, Dependants, Hierarchy of legislation, regulations and others, Imposed Restriction (IR), Post Living...

Case Summary

F&R Date: 2009–10–20

The grievor’s posting from Halifax to Ottawa included an imposed restriction (IR). During the period between the issue of the posting instruction and the grievor’s change of status (COS) date, the grievor was divorced. The Court had approved 50/50 shared custody of their children.

Both the grievor and his supervisor questioned the grievor’s career manager (CM) regarding the grievor’s eligibility for an IR based on his 50/50 shared custody. The CM stated that both legal and Director Compensation and Benefits Administration (DCBA) opinions had been sought. There was considerable discussion within the Directorate of Military Careers (D Mil C) regarding the definition of dependant for IR eligibility of divorced members who had shared custody of their children in consideration of grievance decisions in similar cases. As a result, the D Mil C directed that, with confirmation of 50/50 shared custody prior to the posting, the grievor qualified for an IR under the same conditions as members not divorced having full-time resident children.

Some thirteen months after the change of strength date, the DCBA explained that the grievor was not entitled to an IR because his children did not reside with him full-time as set out in the DCBA 3 Aide-Memoire. The DCBA also stated that the grievor was not entitled to the Post Living Differential (PLD) for the Halifax area.

As redress, the grievor requested reimbursement for: accommodation and parking; the Halifax rate of PLD; and the separation expense (SE) and/or the additional child support he was required to pay. He also requested that the IR policy be reviewed.

The initial authority (IA), the Director General Compensation and Benefits (DGCB) recognized that the term “normally resident” could be misinterpreted. However, he noted that the DCBA 3 Aide-Memoire provided specific direction requiring dependants to be resident with a member full-time for the purpose of the SE. Nevertheless, the DGCB acknowledged that the grievor had relied on advice from his CM in retaining two households and granted partial redress. The DGCB directed that recovery of SE benefits was to be limited to the meals portion only and that any recovery for accommodation was to be ceased and the funds reimbursed.

The Board found that the grievor’s dependent children were normally resident with him and that the grievor was eligible for an IR and SE for the duration of his posting to Ottawa in accordance with the Compensation and Benefits Instruction (CBI).

The Board found that the grievor was entitled to the Ottawa rate of PLD, not that of Halifax.

The Board found that the grievor was not entitled to be reimbursed for additional living expenses under CBI 209.9963.

Systemic Issue

The Board noted that in this and many other cases recently reviewed by the Board, the DCBA revoked the grievor’s IR status and SE benefits after the IR status had been authorized by the career manager (CM) for three years causing severe financial consequences. In this case, the grievor had to request an early posting back to Halifax.

In this case, the Board concluded that the grievor was entitled to an IR and the SE in accordance with the CBI. However, the Board expressed the opinion that this was not the reason the IR and SE were created and noted that it did not disagree with the intent to limit an IR and the SE to those members who have full custody of their children. However, the Board also noted that the current regulations do allow IR and SE for those members with 50/50 custody arrangements and that, until proper Treasury Board (TB) authority for change is received, SE benefits must continue to be administered in accordance with the CBI.

The Board noted that it is the CM who has the authority to approve IR on posting for a period determined with the member, while CBI 209.997 (5) gives the Base or Wing Commander the authority to approve the SE for the first year, and any extension is subjected to the approval of the National Defence Headquarters. The Board was of the opinion that since the IR status and SE benefits are so closely related, there should be a single approval authority. Accordingly, the Board found that a review of the IR and SE policies would greatly benefit the CF and its members.

The Board recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance.

The Board recommended that the grievor be granted IR status, SE and the associated benefits for the duration of his posting to Ottawa.

The Board recommended that the grievor be granted the Ottawa rate of PLD.

Systemic recommendations

The Board recommended that the CDS direct an in-depth policy review that clearly addresses SE entitlement and eligibility through appropriate regulations. The Board also recommended that the review consider the unique situation of posted members who have shared custody.

The Board recommended that the CDS ensure that the practice of making changes to TB authorized benefits before formal approval is received be discontinued.

The Board recommended that the CDS ensure that clear direction is issued to the DCBA and the IR approval authorities regarding the circumstances under which IR and associated SE benefits may be approved.

CDS Decision Summary

CDS Decision Date: 2010–08–26

The CDS partially agreed with the Board's recommendations. He granted redress and directed that recovery action against the grievor's pay cease and that he be reimbursed his SE and related benefits following his IR posting to Ottawa. However, the CDS decided that the grievor was to receive PLD at the Halifax rate for the same period, not the Ottawa rate as per the Board's recommendation. The CDS agreed with the Board that the DCBA Aide-Memoire went beyond amplifying the CBI and, placed limits on the benefits authorized by the TB. The CDS emphasized that until the DCBA Aide-Memoire is approved by TB, the IA shall note that the CBI remains paramount. The CDS did not address the Board's other systemic recommendations in his decision to the grievor.