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Welfare (Ontario Works) Law
(01 January 2016)

Chapter 8 - Applications and Procedures


  1. Overview
  2. Application Procedure
    (a) Overview
    (b) Application Procedure
    . Where to Apply
    . Location of Application Meeting
    . Eligibility Information
    . Participation Requirements
    . Application Form
    . Consents to Disclose and Verify Information
    . Assignments and Agreements to Reimburse
    (c) Rapid Re-Instatement
    (d) Minors in Temporary Care
  3. How and When Welfare is Paid
    (a) To Whom Welfare is Paid
    (b) Time and Manner of Payment of Assistance
    (c) Forms of Payment
    (d) First Month of Assistance
    (d1) Retroactive Eligibility
    Case Note re Smith v ODSP (Div Ct, 2008)
    (e) Minimum Cheque
    (f) Welfare Trustees
    . Overview
    . Welfare Fidiciaries
    . Appointment, Renewal and Revocation of Fiduciary
    . Fiduciary Reporting and Accounting
    (g) Third Party Payments
    (h) Limits on Alienation and Execution of Assistance
    . Overview
    . Alienation or Transfer
    . Execution
    . Exception for Support Orders
    . Exception for Social Assistance Overpayments
    . Maximum Monthly Deductible
  4. Emergency Assistance
    (a) Overview
    (b) Eligibility
    (c) Applications
  5. Death of a Member

________________________________________


1. Overview

This chapter covers the application and payment-related procedures of welfare.

"Re-applications" are typically more useful as a tactical response to a suspension or cancellation - either with or before an appeal is launched. For that reason that topic is dealt with in Ch.9, s.(2)(g): "Administrator Decisions: Cancellation, Suspension and Reduction Decisions: Re-Applications and Re-instatements".


2. Application Procedure

(a) Overview

By virtue of Reg 377/05, effective 24 June 2005 the "phone intake" application system established under the previous government was abolished. This system was complex for all concerned, inefficient and posed substantial constructive and practical barriers to access to the welfare system. We are well rid of it.

The application process now consists of contacting the local welfare office, making and attending an intake appointment where a sworn application taken (along with executed "Consents to Disclose and Verify Information" and possibly "Agreements to Reimburse and Assignments", see below).

(b) Application Procedure

. Where to Apply

Welfare is divided into "geographical areas" throughout the province (see Ch.1 "Overview"), which typically means a municipal area, a native band area or a "territorial division" of the province. Each of these geographical legal bodies is called, for welfare purposes, a "delivery agent". The geographical area of a delivery agent is the 'client' cachement area of the local welfare office. These offices are run by "administrators", who are typically appointed by the delivery agent (most commonly, a municipality or a native band).

Persons with residences should normally apply to the administrator in the geographic area in which they reside. Applications for "emergency assistance" (see below) may be made outside of the geographic area "if, in the opinion of the administrator, the applicant cannot reasonably make the application in the geographic area in which he or she is ordinarily resident" [Reg s.16].

Homeless persons can apply anywhere [Reg s.4].

. Location of Application Meeting

Applying for social assistance is not a simple matter of filing out a form and delivering it to a government office, as is the case with some forms of public assistance such as employment insurance. Justified or not (see Ch.5: "Information Eligibility"), welfare takes a very paternalistic approach to the application process.

Some welfare administrators prefer to conduct initial intake interviews at the home of the applicant, some at their office. Where the practice is for office meetings, and medical or other pressing reasons make it difficult or impossible for the applicant to travel to the office, welfare staff may (and in the case of medical or child-care difficulties: should) accomodate the applicant by travelling to them.

While there are some efficiency and convenience advantages to conducting application meetings in person 'before' an intake worker, the primary reason why a face-to-face meeting is insisted upon by welfare authorities is to ensure that applications when taken are formally "commissioned" as affidavits.

Where meetings in the home of the applicant are practiced (commonly in rural areas) it is perceived as a way of reducing fraudulent applications. Further, while it may or may not be intentional, there is undoubtedly an unspoken application-deterrence value in the shame and stigmatization of home intake meetings, particularly in rural areas where people's senses of privacy and self-reliance tend to be heightened - and gossip networks more efficient.

In any event, the practice of taking applications by meeting is well-established in welfare administrative culture, though in my opinion quite illegal, as only an applicant's signature is legally required [Reg s.20(3)].

The only legal provision requiring a meeting between the parties applies to the month after eligibility is granted [Reg s.23(1)]:
Reg s.23(1)
Within one month after first finding an applicant eligible for income assistance, the administrator shall meet with him or her for the purpose of enquiring into the living conditions and financial, employment and other circumstances of the members of the benefit unit.
However, even this post-eligibility meeting meetings may be dispensed with by policy established by the "Director of Ontario Works" (and commonly is) [Reg s.23(2)].

Meeting requirements may be dispensed with in the event of a re-application made shortly after disentitlement.

. Eligibility Information

The information and "verification" evidence required to accompany an application for assistance is a broad topic. It is critically discussed at length in its own chapter: Ch.5 "Information Eligibility" - where the main theme is that the demands of welfare administrators for documentary evidence of entitlement go well beyond their legal entitlements.

Briefly however, the administrator will expect (for all members of the benefit unit: see Ch.2 "Claimants") full information and evidence with respect to [Reg s.17(2)]:
  • identification [SIN, Health Number (OHIP), date of birth, and contact information

  • family circumstances: children, parents (as applicable)

  • residence circumstances: rent, lease copy, etc

  • income: employment and/or business earnings and other sources - including pending entitlements

  • assets: bank accounts, securities, debts owing to, legal claims, etc

  • any other special status: eg. immigration status, educational enrolments, etc.
In the initial interview the welfare worker will try to ascertain [Reg s.22]:
  • the membership of the benefit unit (see Ch.2 "Claimants");

  • the "budgetary requirements" (see Ch.3 "Assistance") of the benefit unit;

  • the income of the benefit unit (see Ch.6 "Income Rules");

  • the assets of the benefit unit (see Ch.7 "Asset Rules");
. Participation Requirements

The recipient, spouse and dependent adults in the benefit unit will also - unless the administrator excuses them, or the application is for a minor in temporary care (see Ch.2 "Claimants")] - likely be required to enter into a signed workfare "participation agreement" and attend an "employment information session" as part of the application process (see Ch.9 "Workfare") [Reg s.18].

The participation agreement sets out the member's workfare duties, which are a mandatory condition of eligibility - again, unless exempted by the administrator (see Ch.9).

. Application Form

The application (and accompanying forms, see below) must be signed by the applicant, the spouse (including same-sex spouse) if any, and any other dependents required by the administrator (normally minors will not be required to sign) [Reg s.20(1)(2)].

The practice is for workers to ask questions of the applicant, complete the forms themselves, (ideally) present it to the applicant for review, and then have the application sworn and signed before them as an affidavit (note that all welfare workers are "Commissioners for the Taking of Affidavits" [Act s.69]). The legal effect of taking applications as affidavits (which is quite unique amongst all types of public benefit) is to render a misstatement not only (potentially) fraudulent, but criminally perjurous as well [this risk was realized in the case of R v Rodney (Ont Sup Ct, 2007), where two convictions for perjury were registered). The practical effect is to intimidate some applicants in the hope of deterring false statements.

If the applicant has a 'disability', a 'responsible person' may make and sign an application for them [Reg s.20(4)].

Standard forms established by policy of the Director of Ontario Works are used for taking a regular welfare application [Reg s.17(1)].

The welfare application forms also double as ODSP application forms, at least with respect to their identification and financial aspects (if you financially eligible for welfare you will be financially eligible for ODSP). If the welfare authority feels that there is a chance that the applicant might also be eligible for ODSP income support they will likely make a referral to the Disability Adjudication Unit, a branch of the provincial ODSP administration. That process will then continue, in parallel with the welfare application, by the sending of medical forms to the recipient for completion (see the Isthatlegal.ca) ODSP Legal Guide for more on that process).

. Consents to Disclose and Verify Information

Amongst the separate documents that will be required at welfare intake are "Consents to Disclose and Verify Information". These forms (Form 0985) embody the applicant's permission for welfare to contact and receive information from third parties, such as employers, banks, schools, other government departments, etc. Welfare also has legal authority to require the other members of the benefit unit to sign consent forms in the manner required by the third parties, and to have consent forms updated [Reg s.19].

Use of these Consents is fraught with a great deal of abuse, in which administrators are quite complicit. On their face these forms only purport to justify the providing of "information" by third parties to the administrator. As a practical matter however what are provided almost invariably in response to these requests are copies of original documents or business records which - under the rubric of satisfying the "information" request - end up providing the administrator with documentary evidence. It is this same documentary evidence which then finds itself entered into court against the recipient should overpayment assessments or fraud charges follow. This is but one aspect of the tenuous situation that social assistance recipients find themselves in with respect to the criminal procedural protections advanced to other citizens by both the Charter and general principles of privacy, search and seizure law (see Ch.12: "Fraud and Prosecutions").

A new provision in June 2005 [Reg s.20.1] "allows" the administrator, if all other application forms are properly completed, to accept "oral" consent from the members of the benefit unit as adequate and to "proceed with the verification of the information." Essentially this provision allows the administrator to consider the application complete without written consents, if the members orally consent.

This new provision may be an indication of the disrespect with which recipients are regarded by both administrators, the Ministry and third-party information-holders. What responsible information-holder (most of whom are invariably under a fiduciary duty to hold information in confidence) - would release such information on being told by a person (purporting to be a welfare worker) over the phone that: "the applicant says it's ok"?

. Assignments and Agreements to Reimburse

Where a member of the benefit unit has a pending claim or expected future payment (including potential ODSP entitlement), the administrator will likely also require that an "Agreement to Reimburse and Assignment" be executed by them (for the legal effect of these documents see Ch.7 "Asset Rules: Welfare Security Requirements: Agreements to Reimburse and Assignments") [Reg s.15,15.1].

(c) Rapid Re-Instatement

In the case of a new application within one year from the last application, (for either welfare or ODSP) the administrator may accept the prior application and documentation as the present application, but may require updating information and documentation [Reg s.21].

As noted earlier, the subject of "re-applications" is dealt with in Ch.9, s.(2)(g): "Administrator Decisions: Cancellation, Suspension and Reduction Decisions: Re-Applications and Re-instatements".

(d) Minors in Temporary Care

These are typically children in temporary foster care with a Children's Aid Society or a foster family.

The definition of, and non-financial eligibility requirements for, a minor (under 18 years) in temporary care are set out in Ch.2 "Claimants", and the financial requirements are set out in Ch.3 "Assistance".

An application for temporary child care assistance (it's different from the regular application) shall be made to the administrator in the geographic area where the care-giving adult resides [Reg s.57(6)]. If the child is 16 or older then they shall sign the application and supporting documentation as well as the adult.

The care-giver (and minor over 16) may be required to sign an "Agreement to Reimburse and Assignment" if they have or are likely to receive any support for the minor [Reg s.57(8)]. As a condition of eligibility, the care-giving adult may be required to pursue a support claim against anyone with a legal duty to support the child [Reg s.57(7)].


3. How and When Welfare is Paid

(a) To Whom Welfare is Paid

The normal payment procedure is for cheques or direct deposits to be made payable to the "applicant" - which in a single adult benefit unit will be them. In a spousal benefit unit the choice of who becomes the "applicant" is up to the couple, with the non-applicant defaulting into becoming the "dependent spouse" (see Ch.2 "Claimants").

The 'funnelling' of social assistance entirely to one or the other of the spouses has been a cause of a great deal of concern due to the potential existence of imbalances of power within relationships. This topic is critically discussed in Appendix 3: "The Concept of Spousal Dependency".

A rare variation from this practice occured where retroactive payments become due to a spousal couple who had since separated. There a court ordered that the payment be split evenly between the two: Dowswell v Ontario (Director, ODSP) [2006] OJ #973 (QL) (Div Ct).

(b) Time and Manner of Payment of Assistance

Welfare is paid monthly, except when retroactive payments are made [Reg s.64]. Welfare is paid 'in advance', which means for example that July's cheque is paid at the beginning of July (typically a few days earlier in June).

(c) Forms of Payment

Welfare is typically paid in the form of a cheque, but can - with the consent of the recipient - be paid by pre-authorized direct deposit to a designated bank account.

(d) First Month of Assistance

Effective June of 2005, "budgetary requirements" (the basis for calculating "assistance", see Ch.3 "Basic Assistance") for the first month in which eligibility is established (typically, when application is made) are calculated as follows [Reg s.40(2)]:
  • Shelter: The lesser of one month's shelter component as per normal calculation, or the shelter expense actually owing on the date of eligibility. In short, the outstanding rent due for that month.

  • Basic Needs: The basic needs component as per normal calculation for the month, prorated by the number of days remaining in the month from the date of eligibility. In short, that part of the month that remains.
(d1) Retroactive Eligibility

I have often ranted (off-line) about the formalistic focus of OW/ODSP administration on the 'date of application' as the initiating (and limiting) act in any social assistance entitlement claim - be it for main ODSP/OW eligibility or for separate "benefits". After all, if a person was eligible two years before they applied - and can prove it - why should the fact that they applied 'late' be held against them? If the purposes of the programs are to assist impoverished and otherwise eligible recipients, why apply the unrealistic (and very middle-class) premise that they only 'want' the income support or benefit when they first apply.

This issue, often referred to as "date of grant" when considering primary ODSP eligibility, is discussed at length in the Case Note below. The case, Smith v ODSP (Div Ct, 2008) - while relevant to establishing a main OW eligibility date prior to the date that the application was completed, was in fact a case about retroactive special diet allowance (based on special diet rules as they were before the restrictions imposed in November of 2005). Smith provides some guidance to discretionary factors that the Director may apply in granting assistance retroactively.

The potential to extend retroactivity to pre-application periods only exists of course if the date of eligibility for the particular benefit is not determined plainly by statute or regulation, as it now is with the new special diet regime. I note on this point that the date of commencement for primary welfare assistance is at the discretion of the administrator, and as such allows for such retroactivity:
OW Act
s.25(1)
A decision of the administrator shall be effective from the date fixed by the administrator, whether it is before, on or after the date of the decision.
Further and interestingly - and unlike the situation with ODSP main eligibility - there is no restriction on the jurisdiction of the Social Benefits Tribunal (SBT) to consider appeals of 'date of eligibility' decisions, as they plainly meet the appeal test of effecting "the amount of basic financial assistance" [OW Act s.26(1)].

Anyone considering seeking retroactive benefits (ie. before the date that they applied for them), should review the Smith case carefully. They are forewarned however that any attempt to have main welfare eligibility established prior to the date of application will be met with raw horror by welfare administrators.

. Case Note re Smith v ODSP (Div Ct, 2008)

The interesting issue of retroactive eligibility for assistance arose for consideration in the case of Smith v Director (ODSP) [2008] OJ (QL) #302 (Div Ct). In this case the appellant was a grand-fathered FBA recipient who applied for a retroactive special diet allowance. Initially his application was granted effective November 2003 - commensurate with his date on which the medical evidence supporting the request was signed by the medical professional, and consistent with stated ODSP policy. However in 2005 he made similar application to back-date his eligibility to June 1998. The Director's refusal to grant this retroactivty was upheld by the SBT.

The appellant in Smith was ultimately unsuccessful in his quest for retroactive entitlement as the court held that the [pre-November 2005] special diet Regulation was "prospective in nature" (future-oriented) and "compensatory" (to compensate for actual expenses incurred, not a "flat-rate" entitlement). As Molloy J (for the court) stated:
It is not reasonable to interpret the Regulation as having a mandatory retroactive effect, such that any person upon filing the appropriate doctor's verification would be entitled to the allowance, regardless of whether he actually purchased or consumed any of the items on the special diet. It may be reasonable to interpret the Regulation as having retroactive effect in some circumstances, but it is not reasonable to interpret it as mandatory without regard to the surrounding facts.
This "compensatory" element - tying the amount of the allowance directly to specific medical evidence - has been adopted in the post-November 2005 special diet amendments with a vengeance - even to the point of capping the quantum of special diet allowance allocated any specific condition.

However, while the court noted that the special diet Regulation had been amended in November 2005 to eliminate any possible retroactivity interpretation - and while it declined in the case before it to grant the requested retroactivity - it did support the view that retroactivity was possible in some circumstances (though obviously only where the wording of the granting legislation could bear that interpretation,and likely where a 'compensatory' element was present). Without endorsing the specific factual elements that might achieve this result, the court did note that the SBT had considered the following factors:
  • laches (delay in making the application after he learned of its availability),
  • the apparent mental competence of the appellant;
  • the absence of medical evidence supporting the specifics of his special diet requirements.
Some of the considerations (laches and incompetence) are reminiscent of factors that would be considered in the court's discretion to grant equitable relief.

The court in Smith left the door enticingly open to the possibility of discretionary retroactive social assistance eligibility - that is, eligibility pre-dating the date of application. It appears that this potential exists where:
  • the legislation does not preclude the possibility on its face (ie. where it is silent or ambiguous on the issue),

  • where the retroactivity would have the function of compensating the applicant for past expenses, and where

  • the fact situation is sympathetic - or as noted above - almost such as would, in other contexts, be sufficient to grant equitable relief.
The key to Smith may be the issue of past 'compensation'. The thinking was that since the recipient had 'missed out' on his past special diet needs, that a retroactive payment would not be able to re-write history and correct this. However, with respect to the other more primary elements of basic assistance (ie. shelter and basic needs), it would be hard and often harsh to argue that since the recipient 'did without' (and presumably still survived) that they do not merit past compensation. For instance, what if the shelter and basic needs were met by means of borrowed money or extended credit? Would not compensation there be both appropriate and functional? Indeed, at least in the case of ODSP with its higher assets limits, why not compensate if the needs were met out of the pocket of the recipient?

Applicants and recipients seeking retroactive entitlement might be best advised to:
  • highlight any personal handicaps which may have contributed to the 'late' request for entitlement [eg. competence, medical crisis];

  • thoroughly evidence their entitlement through the period of requested retroactivity [good sense in any application, but essential in these situations];

  • thoroughly document the manner in which (assuming they did) in fact meet their shelter and basic needs requirements, by either payment or some form of deferral (eg. loan or debt accumulation);

  • be as scrupulous as possible in their own procedural behaviour (ie. equitable "clean hands") - for example by advancing (and documenting) all communications to the Director regarding the retroactivity request as soon as both eligibility and need become plain to the applicant [laches].
(e) Minimum Cheque

If the amount of any payment of assistance is determined to more than zero but less than $2.50, the amount shall be $2.50 [Reg s.63].

(f) Welfare Trustees

. Overview

In cases where the recipient is a minor (under 18 years) the administrator cannot pay assistance directly to the recipient [Act s.17(2)]. Similarly, where the administrator believes that the recipient - though an adult - "is using or is likely to use his or her assistance in a way that is not for the benefit of a member of the benefit unit", the administrator may at their discretion refuse to make direct payment to the recipient [Act s.17(1)].

In such cases the administrator will look for an existing "guardian of property" or "trustee" and will make the payments to them. If none exists however the administrator has the authority to appoint someone to act as "welfare trustee", though this is rarely done - likely because establishing and/or running such trusteeships are a lot of work and responsibility for welfare to take on.

. Welfare Fiduciaries

As noted, if there are pre-existing trustees or "guardians of property" then the assistance will likely be paid to them. Such persons, indeed any welfare trustees, are "fiduciaries" in that they owe a heightened duty of care towards the vulnerable "beneficiary" or recipient. That is, unlike legal duties that might be created (for example) by a contract - where the parties are entitled to look after their own interests ahead of those of the others - a 'fiduciary' must put the interests of the beneficiary above their own. Examples of common "fiduciaries" include:
  • "attorneys" (not lawyers) holding Powers of Attorney of Property;

  • private trustees over trust funds;

  • the Public Guardian and Trustee;

  • guardians (under the Substitute Decisions Act) or "committees" for the mentally-incapable.
Welfare fiduciaries are generally not entitled to any fee, compensation, reward or reimbursement for costs or expenses for any services rendered regarding receiving and disbursing welfare payments [Act s.17(4)]. Exceptions to this prohibition are where the welfare trustee is the Public Guardian and Trustee or "an organization or agency under contract to the delivery agent or to the Ministry to act on behalf of persons" [Reg s.60(1)]. In these cases the welfare trustee may receive compensation (from the province or the administrator) for "expenses incurred and services provided in acting for the recipient". In no event shall such compensation come from the assistance amount [Reg s.60(2)].

. Appointment, Renewal and Revocation of Fiduciary

Where "feasible" the administrator shall obtain the consent of any adult recipient to the appointment of any particular fiduciary [Reg s.60(4)].

If the recipient requests, the administrator shall give them an oppourtunity to:
  • suggest an alternative fiduciary;

  • to make submissions as to why the appointment should not be made;

  • to make submissions why the welfare trusteeship should be discontinued.
The administrator shall periodically review the continued need for a welfare trustee appointment, and consequent thereof may revoke it [Reg s.60(5)].

If the welfare trusteeship is financially abused, the administrator may make additional payment to or on behalf of the recipient of up to one month's assistance, if "the benefit unit is unable to provide for its basic needs and shelter" [Reg s.60(6)].

. Fiduciary Reporting and Accounting

Welfare "fiduciaries" are required to report and account to the administrator for the disbursement of the assistance they receive for the recipient [Act s.17(5)].

Accounts shall be provided to the administrator annually and must satisfy any additional administrator requests for "supplementary information, monthly or otherwise, including receipts" [Reg s.60(3)].

(g) Third Party Payments

The administrator may make payment of assistance directly to third parties for basic needs and shelter (typically this is used for direct payment of rent to landlords) [Act s.18].

The administrator must make sure that such debts are "bona fide" (ie. real) and may - in the event of dispute as to such debt, or at the request of the recipient - pay part of the assistance into court or to a neutral third party [Reg s.61].

(h) Limits on Alienation and Execution of Assistance

. Overview

Subject to the exceptions noted below, welfare law prohibits assistance being subject to [Act s.23(1)]:
  • "alienation or transfer" by the recipient; and

  • "garnishment, attachment, execution, seizure or receivership under any other Act."
These prohibitions apply even if the assistance has been paid into a recipient's account at a financial institution [Act s.23(5)]. This can create a problem of "tracing" which is discussed briefly in Ch.7 "Asset Rules: Asset Exemptions: Overview".

. Alienation or Transfer

Firstly, these prohibitions try to prevent the recipient from 'dealing' with their assistance by way of 'selling' it or 'assigning' it, as security or otherwise. An "assignment" is a transfer - typically in the form of a document signed by the recipient - purporting to 'give' the assistance to a third party in the same way that one might transfer title of personal property to another. It is commonly used in association with another form of legal authority called a "direction" which gives permission for the third party to pay monies it owes the recipient, to the third party.

"Assignments and directions" are commonly used by lawyers or other professional service providers to secure payment of fees. Indeed, welfare administrators use them as a standard form of securing payment to themselves of future non-assistance entitlements of the recipient (see Ch.7 "Asset Rules: Agreements to Reimburse and Assignments").

"Attachment" is a species of transfer and refers to the private enforcement (as opposed to "execution" through the court as discussed below) of some form of debt collection or security entitlement, such as a mortgage, general security agreement, court order or such.

. Execution

Secondly, these provisions prohibit (except as otherwise noted in this section) the application of statutorily-based collection methods ("execution") against the assistance (ie. garnishment, etc). These are always grounded in a court order, or a tribunal order that has been registered with a court for enforcement. A fuller explanation of these collection methods is found in the chapter on "Collections" in the Isthatlegal.ca Small Claims Court (Ontario) Legal Guide.

There are other forms of "execution" - particularly common law liens - which are not statutorily based.

In McIntosh v Laronde [1998] OJ #5988 (Div Ct) an electronically-deposited FBA allowance was paid into a bank account, which then applied an outstanding garnishment against a portion of the fund therein. The bank argued, against an earlier version of the statutory provision above-quoted, that the monies once deposited effectively became the property of the bank, with the bank simply "owing" a sum to the depositor as a debtor - thus allowing the garnishment. The three-judge court panel rejected this argument largely on policy grounds, re-affirming the obvious intent of the legislation.

In Kaufman v Royal Bank of Canada 34 CPC (3d) 334 (Small Claims Court, 1994) a bank account held by the plaintiff was both overdrawn and subject of a third party garnishment. When the plaintiff attended the bank to cash (not deposit) the cheques, the bank seized the funds in satisfaction of the debts. The plaintiff's lawsuit for damages was successful, the court ruling that the mere 'cashing' of a cheque did not establish a debtor-creditor relationship sufficient to ground the seizures on. While this case is unrelated to the statutory non-seizure protection enjoyed by social assistance payments it may be relevant to recipients (who should not assume that banks either know or care that this is the law).

. Exception for Support Orders

One exception to the above prohibitions is that the administrator may deduct from assistance: "the amount of a support deduction order that is enforceable against a member of the benefit unit under section 20 of the Family Responsibility and Support Arrears Enforcement Act, 1996" [Act s.23(2)].

These include outstanding child and spousal support orders under the Family Law Act or otherwise. Such deductions are not made payable directly to the spouse or child (as the case may be) but are paid to "the Director of the Family Responsibility Office of the Province of Ontario" or similar entities in other jurisdictions [Reg s.62(2)].

Authority exists under s.23(2) of the Act for further exceptions for "government debts", but to date no regulations have been passed creating them.

. Exception for Social Assistance Overpayments

"Overpayment" assessments made against a recipient under any Ontario social assistance program (Ontario Works and ODSP, and the old General Welfare Assistance and Family Benefits Acts) are expressly recoverable by way of deduction from welfare assistance, and vice versa [Act s.19(1)(3)(4),20(1)]. This principle is known as the 'portability' of overpayments.

The question of whether a former spouse can be subjected to overpayment deduction is complicated: see Ch.9 "Administrator Decisions: Overpayment Decisions: Joint Liability Between Recipient and Spouse". Also see Ch.9, s.3 generally on "Overpayments".

Similarly, failure to honour an "Agreement to Reimburse and Assignment" (see Ch.7 "Asset Rules: Welfare Security Requirements") may also create an enforceable overpayment against any signatory. Such an overpayment would arise typically when some lump sum external retroactive entitlement comes into pay - such as a motor vehicle accident (MVA) settlement or award payment [Act s.19(2)].

Where a recipient loses eligibility by reason of excess assets, the total amount of overpayment recoverable is limited to the difference between the value of the disentitling assets and the applicable asset cap [Reg s.62(3)].
Example
If a single person recipient comes into a $2,000 retroactive payment (which they keep for six months before spending down), the maximum recoverable is $2,000 minus the applicable asset cap of $585 (see Ch.7 "Asset Rules"): or $1,415. This is the case even though the assistance the recipient had been getting over what would have been the period of disentitlement totals $3510 (at the maximum rate).
. Maximum Monthly Deductible

This refers to the maximum overpayment amount which may be deducted monthly from ongoing basic assistance - not to the total amount of the overpayment or support order owing.

Note that overpayments are deducted in this fashion from 'basic assistance', not from budgetary requirements (generally on this distinction see Ch.3: Basic Assistance).

Where the above exceptions to seizure (support and overpayment) do apply, the maximum that may be deducted by the administrator is 10% of current assistance. More may be deducted if the recipient so consents [Act s.20(2), 23(3)]. However as a practice administrators tend to deduct only at a 5% rate.

However, social assistance arrears payments (ie. lump sum back-payments of either of welfare or ODSP) may be deducted in full [Act s.23(3); Reg s.62(1)]. That is, a recipient who has both an overpayment, and an entitlement to back (retroactive) OW/ODSP (as is commonly the case when an applicant wins an ODSP medical eligibility appeal before the SBT) will likely find the amount of back entitlement partially or fully claimed by OW (depending on the amount) to satisfy the overpayment debt.

4. Emergency Assistance

(a) Overview

Emergency welfare assistance may be granted in an amount determined by the administrator for a period of up to half a month without a full application. Thereafter a full application is required [Reg s.56].

(b) Eligibility

The criteria for granting emergency assistance are [Reg s.56(3)]:
  • the applicant (and their benefit unit) cannot meet the expenses of basic needs and shelter by reason of lack of money or assets, and are unable to obtain credit for this purpose; AND

  • failure to provide the assistance will result either danger to the physical health of a member of the benefit unit, or in one or more dependent children being unable to continue to reside with his or her parent.
No applicant or person is eligible for emergency assistance if they are currently under welfare or ODSP suspension for any reason [Reg s.56(4)].

(c) Applications

Normally applications for emergency welfare are made at the local office of the geographic area in which the applicant resides. However, applications for emergency assistance may be made at other local offices if "the applicant cannot reasonably make the application in the geographic area in which he or she is ordinarily resident." [Reg s.16(2)].


5. Death of a Member

When a member of the benefit unit dies, their share of assistance simply terminates and the budgetary requirements of any remaining members of the benefit unit are re-assessed as per the 'new' circumstances of the benefit unit.
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