What province am I a resident of for Tax/Health Care?

[Seadog]

So I've lurked on the forum for a long time, and turns out I've been a Moustacian all my life, despite only learning there was a word for my condition about a year ago.

Anyways, long story short, I worked oil for 7.5 years, got laid off in Feb (with a FIRE worthy stash), got rid of my place, sold all my stuff, and drove back to NS (where my family is and I grew up) in mid May, where I then sold my car, and put a few boxes in storage and took a few trips.

The plan is now to travel. A lot. However one 2 month African group safari I'm looking at requires I have health insurance. And might not be a bad idea period. Looking at all providers though, most stipulate that their policy is only valid if your provincial health insurance remains active, for which you need to call them if you're going to be away for more than 6 months. 

Ah right. So I call NS last week to say I need to switch to NS insurance, and btw I'll be travelling for about a year. Easy no? They ask me innocuously enough if I've been out of the province at all, to which I reply I've done a couple trips. Apparently this is a huge deal. Because of that, I haven't "moved" here, rather they feel I'm just a homeless Alberta person taking a series of trips until I spend 90 consecutive days here, and even then I'm not allowed to do any sort of big trip until I've spent 6 months here. But they said Alberta should insure me on a long term leave waiver. So I call them, but as far as they're concerned, since I have no ties there, no residence, and all my mail and everything is coming to NS, I'm not temporarily away, rather, I'm just away. They said my health card has retroactively expired in Mid Aug.

This leaves me in a rather precarious situation. Despite being a Canadian citizen/resident, and having spent maybe 9.5 of the last 12 months in country, and having contributed more than my share in tax, I'm now without insurance, and no province wants to call me a resident.

So I guess I'm just curious where I fit in here, or if anyone has advice on how to proceed? And looking forward who should i pay taxes to? I mean I'm quite fine going with no insurance if it means I don't need to pay provincial income tax, but somehow I don't think that will fly....

[Cathy]

Hi Seadog,

The first thing you need to be aware of that is that every province has its own laws for residency with regard to provincial taxes and with regard to healthcare. They usually aren't the same statute. In other words, a province might use a completely different definition of residency for the purpose of provincial tax compared to for healthcare.

In the case of taxes, the provinces have all worked together to make their definitions consistent in the sense that everybody who lives in Canada will be a resident of exactly one province, and it's usually based on where you were residing at the end of the year. As mentioned, technically every province has its own definition in its provincial tax legislation, but they've just all worked together so that their definitions work out in this simple way. This makes Canadian provincial tax much simpler than state tax in the United States, where the states have not made any attempt to coördinate their definitions of tax residency.

The bad news is that the scenario of harmony that I just described only applies to tax residency. In the case of healthcare residency, the provinces of Canada have not made any attempt to make their definitions work well together. In the abstract, it's possible you might be a resident of nowhere or of multiple provinces under their respective laws.

In your specific case, since you want to obtain health insurance in Nova Scotia, the only law you need to worry about Nova Scotia law. Specifically, you need to prove that you fall within the definition of healthcare residency as defined in the Nova Scotia statutes. If you need further help, I might be able to get you started with the research, but the main points I've wanted to convey in this post are that (1) anything related to tax residency is irrelevant to your healthcare inquiry, and (2) you only need to prove that you are a healthcare resident within the meaning of Nova Scotia's statutes; you do not need to prove that you are not an Alberta healthcare resident (unless the Nova Scotia statute makes that an element of the test, which it could; I haven't looked).

If you cannot prove that you are a healthcare resident of Nova Scotia as defined in its statutes, then you will not be entitled to obtain public health insurance there (at least not without a constitutional argument).

[Seadog]

Thank you for the in depth response.

As I mentioned NS took the position that AB should insure me on a temporary leave, but AB basically said I've already moved and if I don't qualify in NS, then I'll need to pay for my own insurance somehow. But further research led me to:

http://www.hc-sc.gc.ca/hcs-sss/medi-assur/faq-eng.php#a8

"Private health insurance plans are prohibited from duplicating coverage for health services provided in Canada which are insured under the Canada Health Act."

Which basically says what AB told me to do is illegal.

Further, looking at the NS site, (http://novascotia.ca/DHW/msi/moving_travel.asp) for "Moving to Nova Scotia from within Canada", it only says coverage begins on the first day of the third month after you establish residency. It doesn't make any mention of a prohibition on leaving the province for the first 90 days.

However, under another section about travel to other Canadian provinces it says:

"If you have moved to Nova Scotia from outside Canada, you will not be eligible for a temporary absence until you have resided in Nova Scotia:

    for 90 days before you would be entitled to an absence up to six months, or
    for 183 days before you would be entitled to an extended absence."

Which seems to be what they are telling me. That they are taking the more restrictive elements of someone moving from outside Canada. That in and of itself seems ridiculous though. A good many people I'm sure relocate for work or some other reason, and need to leave for one reason or another. For all these people to be now without insurance, and further have no possible way to legally get insurance seems almost criminal.

[Cathy]

First of all, as mentioned above, if you want to get healthcare coverage in Nova Scotia, the only thing that matters is Nova Scotia's laws. For that purpose, it does not matter what Alberta's representatives tell you or even what Alberta's laws say.

Second, you cannot do this research by reading government webpages. These webpages are not the law and are not guaranteed to be correct. In fact, the webpage you quoted is wrong in the claim it makes that you quoted that "Private health insurance plans are prohibited from duplicating coverage for health services provided in Canada which are insured under the Canada Health Act". There is no such provision in the Canada Health Act, RSC 1985, c C-6. In fact, such a provision would probably be unconstitutional as relating to a matter properly within the authority of the provinces under Constitution Act, 1867, § 92(16). In contrast to the nonexistent federal provision, provincial legislatures may have the authority to pass such laws and six provinces have such laws on the books. See Chaoulli v. Quebec (Attorney General), 2005 SCC 35, ¶ 77. The Chaoulli court found that Quebec's law of that nature was invalid, but the reasoning was specific to Quebec, so the other five provinces with such a law continue to enforce them. The quote from the government webpage is true for half of Canada, but it's wrong as a general proposition.

Just like you can't trust government webpages, you also can't trust what government customer service representatives tell you. These people are usually not trained in the law and, in my experience dealing with government agencies, often do not know what they are talking about.

Now that we've discussed what does not matter, let's turn to what actually does matter, namely Nova Scotia law. The Health Services and Insurance Act, RSNS 1989, c 197, § 17(e) says that the Governor in Council may make regulations "defining residents of the Province for the purpose of this Act". Those regulations are the Hospital Insurance Regulations, NS Reg 11/58 ("Regs"). According to the regulations, a person "who moves to Nova Scotia from a place outside Canada" is "entitled to ... [services] ... commencing on the day he becomes a resident of Nova Scotia". Regs § 2(b). For a person who moves to Nova Scotia from within Canada, he is not entitled to services until the "first day of the third month immediately following the month in which he becomes a resident of Nova Scotia". Regs § 2(a).

The key question then becomes: did you become a resident of Nova Scotia when you drove back there in "mid May"? A resident is a person "who is legally entitled to remain in Canada and who makes his home and is ordinarily present in Nova Scotia, but does not include a tourist, a transient, or a visitor to Nova Scotia". Regs § 1(m)(i). In order to secure services, you will need to show that:

• You make your home in Nova Scotia,
• you are ordinarily present in Nova Scotia, and
• you are not "a tourist, a transient, or a visitor to Nova Scotia".

It appears that none of these requirements of the Nova Scotia regulation have ever been interpreted by a court, so I just base the following comments on a plain reading of the provisions.

With respect to requirement #1, Nova Scotia is apparently the place to which you intend to return when you are away, and that may be sufficient for it to be your "home".

Turning to requirement #2, the word "ordinarily" describes a default state of affairs. If your travelling is out of the ordinary, maybe you can credibly say that you are ordinarily present in Nova Scotia in the sense that if you weren't travelling (which is unusual), you would be in Nova Scotia, which is your home. I express no view on this argument or any other argument.

Finally, with respect to requirement #3, given that you intend to return to Nova Scotia and consider it your home, you might not be "a tourist, a transient, or a visitor to Nova Scotia".

It sounds like the "is ordinarily present" requirement might be the toughest for you, but there are some plausible arguments there.

Now I will address the two final issues:

If you believe you meet the test for Nova Scotia residency in the regulation (and discussed above) but Nova Scotia will not give you insurance, what can you do? You may have to file an application for a declaration in the Supreme Court of Nova Scotia. While I have no experience with or knowledge of Nova Scotia civil procedure, I can say that in Alberta, this is a pretty fast process. You would file an application and affidavit, serve them, receive a hearing date within a couple weeks, attend the hearing, and if the judge is satisfied you meet the test, she can sign an order stating that you meet the test and then that will be binding on the government. This should not be interpreted as information about Nova Scotia civil procedure, which I know nothing about. The only points I am conveying in this paragraph are (i) the Court has the power to resolve your dispute with the government, and (ii) it won't necessarily be a lengthy process.

The only remaining issue is: What if you truly are not eligible for health insurance anywhere in Canada? You may be out of luck in that case, barring a constitutional argument. Section 6 of the Charter protects the right "to move to and take up residence in any province", subject to "any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services". Assuming these requirements interfere with your right "to ... take up residence" in Nova Scotia, the constitutional question would be whether these residency requirements are "reasonable".

You should retain counsel to assist you with these matters. I express no view on anything discussed here. I'm just trying to jump start your research, but you cannot rely on this information in lieu of retaining counsel.

[going2ER]

I'm in NS and have had some dealings with obtaining Health Cards through my employment. If you can provide verification you live in NS, a bill or something in your name with a NS address, changed your license to NS, etc. then call again and request a health card, if they insist no, request a supervisor. If the answer is still no contact your local MLA, they can usually get answers we can't. Good luck with it and enjoy your travels.

[Cathy]

Contacting democratic representatives is a reasonable suggestion, as are other non-judicial methods such as speaking to the press.

One major advantage to filing an application for judicial review or other court action is that you won't have to deal with low-level customer service agents anymore. Instead, you'll be dealing with the government's lawyers, who are presumably much more capable of applying the law to your facts. They may even concede the case if your position has merit, although there's obviously no guarantee of that so an action should only be filed if you are prepared to litigate it against skilled counsel. The courts are a very effective way of resolving disputes, but they are also difficult to use. One unfortunate aspect of the complexity of the law in our society is that for many people, judicial remedies are practically out of reach for their disputes, especially disputes that are not monetary or that do not involve large amounts of money.

To be clear, I express no view on the merits of OP's case and I do not intend to suggest that he would win any judicial proceeding. This is not just a boilerplate disclaimer but is actually literally true, since my intention is just to provide areas for research, not to comment on whether any particular argument would succeed.