Simon's Megalomaniacal Legal Resources

Welfare (Ontario Works) Legal Guide
(20 June 2021)

Chapter 3 - Basic Assistance

1. Overview
   (a) General
   (b) Example
   (c) Budgetary Requirements
   
2. Renters and Home Owners
   (a) Overview
   (b) Basic Needs
   (c) Shelter
   . Definition
   . Maximum Shelter Amounts
   . Shared Accomodation Shelter Expense Allocation
   . Shared Accomodation Shelter Expense Allocation in Public Housing
   (d) Northern Supplement
   
3. "Boarders and Lodgers"
   (a) Background
   (b) Welfare Misinterpretation
   (c) Budgetary Requirements Calculation
   (d) "Boarding and Lodging" Component
   (e) "Boarding and Lodging" Northern Supplement
   
4. Special Diet Supplement
   (a) Overview
   (b) Eligibility
   (c) Transition Rules
   (d) Underinclusive Coverage and the Human Rights Code
   
5. Advanced Age Supplement
   
6. Pregnancy Supplement
   
7. Sponsored Immigrants
   (a) Overview
   (b) Budgetary Requirements of Recipients NOT Living in Sponsor-Controlled Premises
   (c) Treatment of Recipients Living in Sponsor-Controlled Premises
   . Overview
   . Calculation of "Deemed Income"
   . Exceptions
   . Comment
   
8. Prisoners
   (a) General
   (b) Community Residence while on Temporary Absence, Parole, Probation or Conditional Sentence
   
9. Institutional Residents
   (a) Overview
   (b) Long-Term Care Home Residents
   (c) Women's Shelter Residents
   (d) Hospital Patients
   (e) Homeless
   . Living "Rough"
   . Homeless Shelter Residents
   . "Crashing"
   (f) Residential Substance Addiction Treatment Programs
   
10. Minor Sole-Support Parents
    (a) Overview
    (b) Budgetary Requirements
    
11. Minors in Temporary Care
    (a) Overview
    (b) General Budgetary Requirements
    
12. Living with Parents
    (a) Overview
    (b) Budgetary Requirements
    (c) Basic Needs Component
    (d) Northern Supplement
    (e) Special Diet
    (f) Pregnancy Supplement
    (g) Exceptions
    (h) Opt-In to Dependent Status

________________________________________

1. Overview

(a) General

Formally, welfare assistance is divided into two main types: "basic financial assistance" and "employment assistance" [Act s.3]. "Employment assistance" is really "workfare" and employment-related duties, which is discussed in Ch.11. "Basic financial assistance" includes financial assistance for basic needs and shelter (covered in this chapter), "benefits" (see Ch.4 "Benefits") and "emergency assistance" (see Ch.8 "Applications and Procedures") [Act s.5].

Welfare assistance is normally paid monthly at the beginning of the month to which it applies (as opposed to ODSP which is paid "in arrears" so that the March cheque is received at the end of March).

Essential to determining the amount of actual assistance (the amount of the cheque or direct deposit) is the concept of "budgetary requirements" ("BRs"). The following formulae set out how financial assistance is calculated [Act s.7(3); Reg s.40(1)].

The simplified version is:

Amount of Income Assistance = Budgetary Requirements minus Deductions
However a more precise approach would take it in stages, as follows:

1. Budgetary Requirements (BRs)
   
   Budgetary Requirements equal Shelter Allowance plus Basic Needs Allowance plus Supplements (eg. northern, special diet, pregnancy, advanced age, etc as set out in this chapter)
   
   Note that the 'shelter/basic needs' model here presupposes a typical 'renter/owner' recipient, but can be modified for other types such as boarder, institutional, sponsored immigrant, etc as set out in this chapter. "Budgetary Requirements" are discussed in more detail in s.3 below.
   
   
2. Basic Assistance
   
   Basic Assistance equals Budgetary Requirements plus Non-Discretionary Benefits plus Discretionary Benefits minus Chargeable Income
   
   Non-discretionary benefits are explained in Ch.4, s.2, and discretionary benefits in Ch.4, s.4. The concept of 'chargeable' (deductible) income is explained in Ch.6 "Income Rules".
   
   
3. Amount of Actual Assistance
   
   Amount of Actual Assistance equals Basic Assistance minus Overpayment Deductions
   
   Overpayments deductions are covered in Ch.9, s.3: "Administrator Decisions: Overpayments".

(b) Example

Let's take an example of one month's actual welfare assistance calculation:

Pushpa is a single applicant with an apartment rent of $600 and $200 chargeable income from employment (this is NOT the same as gross employment income). She gets a special diet supplement of $50, a guide dog benefit of $74 and has a regular overpayment deduction of $35. As of 31 August 2010 the calculation for this applicant is:

1. Budgetary Requirements = Basic Needs ($227) + Shelter (maximum is $372) + Special Diet Supplement ($50)
   
   Total BRs = $649
   
   
2. Basic Assistance = BRs ($649) + Guide Dog Benefit ($74) - Chargeable Income ($200)
   
   Total Basic Assistance = $523
   
   
3. Amount of Actual Assistance = Basic Assistance ($523) - Overpayment Deduction ($35)
   
   Amount of Actual Assistance = $488

(c) Budgetary Requirements

"Budgetary requirements" are the basis upon which welfare assistance is calculated, and the main topic of this chapter. Budgetary requirements are amounts, designated by charts and formula (below) established by the welfare regulations, that are allocated for the components of an allowance: mainly, the "basic needs" and the "shelter" component. The amount of these components varies with the size and make-up of the "benefit unit" (another key concept which is explained in Ch.2: "Claimants"). Of course, the more dependents in the benefit unit, the higher the budgetary requirements. (Note: for determination of budgetary requirements in situations of shared custody of offspring, see Ch.2 "Shared Custody Dependent Minors".)

The 'basic needs' component is fixed at an amount which depends on the size and make-up of the benefit unit and is meant for general living expenses like food and clothes.

The shelter component is set at a maximum amount. If a recipient's shelter expense is less than the maximum (which is usually only the case with subsidized public housing), then the recipient gets that smaller amount. If the shelter expense (eg. rent) is more than the maximum, they only get the maximum.

Generally, the total of "basic needs" and "shelter" components equals the total "budgetary requirements". There are however additional amounts (discussed below), such as special diet and advanced age supplement, which can also increase a recipient's budgetary requirements.

The concept of "budgetary requirements" also plays a key role in establishing welfare eligibility. If an applicant's monthly deductions are greater than the BRs, then (generally) they are not eligible for assistance on the basis of their income, at least for that month (see Ch. 6 "Income Rules"). Similarly, BRs are also used to establish the maximum asset levels allowable for recipients (see Ch.7 "Asset Rules").

Before determining the budgetary requirements of any given "benefit unit", the size and make-up of that benefit unit must be determined (see Ch.2 "Claimants").

Note Re Shared Custody or Shared CCTB Eligibility for a Dependent Minor

Where an applicant/recipient shares either physical custody of a child, or shares eligibility for the Canada Child Tax Benefit on behalf of the child, most non-shelter elements of budgetary requirements above (ie. basic needs, northern allowance, special diet and pregnancy supplement) are reduced by 50% of the amount attributable to that child [Reg s.44.2]. Such 'sharing' of dependent minor children is generally discussed at Ch.2, s.4(b), and is specifically noted in each of the different recipient category discussions below.

2. Renters and Home Owners

(a) Overview

This category: "renters and owners" [Reg s.41] applies to the determination of budgetary requirements in most situations, including those of homeless people. Unless a more specific categorization discussed in this chapter applies (review the section headings) the budgetary requirement rules set out in this section cover applicants who are either "renters" (ie. occupy a self-contained apartment alone or shared with others) or "owners". Homeless applicants are addressed partly in Ch.2 "Claimants".

The budgetary requirements of those who receive 'board and lodging' (room plus meals) are treated separately in section 3 below. The definition of "boarder/lodger", as opposed to 'renter', is discussed at length in that section.

The total of the following items determines the budgetary requirements of a "renter/owner":

• Basic needs [s.2(b) below]
  
• Shelter [s.2(c) below]
  
• Northern supplement [s.2(d) below]
  
• Special diet [s.4 below]
  
• Advanced age supplement [s.5 below]
  
• Pregnancy Supplement [s.6 below]

Note Re Shared Custody or Shared CCTB Eligibility for a Dependent Minor

Where an applicant/recipient shares either physical custody of a child, or shares eligibility for the Canada Child Tax Benefit on behalf of the child, most non-shelter elements of budgetary requirements above (ie. basic needs, northern allowance, special diet and pregnancy supplement) are reduced by 50% of the amount attributable to that child [Reg s.44.2]. Such 'sharing' of dependent minor children is further discussed at Ch.2, s.4(b).

(b) Basic Needs

These are amounts fixed by law as below [Reg s.41(1)1]:

# of Non-Spousal Dependents	Dependents 18 plus	Dependents 0-17yrs	Recipient	Recipient & Spouse
0	0	0	343	494
1	0	1	360	494
1	1	0	623	652
2	0	2	360	494
2	1	1	623	652
2	2	0	781	826
3	0	3	360	494
3	1	2	623	652
3	2	1	781	826
3	3	0	956	1,001

For each additional dependent 18 years and older: add $175.
For each additional dependent 0-17 years add: $0.

Example:

Benefit unit made up of a two adult spouses and two children under 18.

The "recipient and spouse" (vertical) column (far right) should be used because there are two spousal adults. The fourth (horizontal) line down should be used because there are two children under 18.

Therefore "basic needs" component for this benefit unit is $468.

Note:
Since July 2008 basic needs amounts for children were reduced in conjunction with the introduction of the Ontario Child Benefit (OCB) and the elimination of the National Child Benefit Supplement (NCBS) clawback. Under this change recipients are, for the most part, presumed to be in receipt of OCB and the NCBS - thus making up for the basic needs reduction. The Ontario Child Benefit scheme is explained in
detail at Ch.6, s.6.

(c) Shelter

. Definition

'Shelter' refers to the expenses related to maintaining a dwelling place which is a principal residence. It does not include expenses related to premises or buildings in which the benefit unit does not reside.

Note that where a recipient is receiving rent as a landlord or as a chief tenant (subletting), then such rental income is assessed separately (as income) from the shelter expense calculations set out here (see Ch.6 "Income Rules").

The "shelter" component of the budgetary requirement of a renter/owner is determined by totalling the amount of the following monthly expenses, subject to maximums set out in the chart below [Reg s.42].

Eligible shelter expenses include:

• rent for dwelling place, other than amounts for parking and cable;
  
  
• principal and interest on a mortgage, loan or an administrator-approved repair loan respecting the property;
  
  
• occupancy costs paid under an agreement to purchase the dwelling place;
  
  
• property taxes;
  
  
• premiums for an insurance policy with respect to the dwelling place or its contents;
  
  
• reasonable and necessary expenses, approved by the administrator, for the preservation, maintenance and use of the dwelling place;
  
  
• if the shelter is a condominium or co-op housing then the common expenses required, except that portion of the common expenses allocated to the cost of energy for heat;
  
  
• cost of an energy source used for household purposes other than for heat (eg. hydro);
  
  
• water and sewage;
  
  
• rent of a furnace and a hot water heater;
  
  
• rent under a land lease;
  
  
• the cost of energy for heat.

For most situations the biggest of these expenses will be rent or mortgage payments. Typically this alone is enough to push the shelter expense over the maximum allowed (see below). However for others - especially homeless people - their shelter allowance is "underused".

. Maximum Shelter Amounts

The total of the above shelter expense covered cannot exceed the maximums set out here (except in the rare situation where the cost for heat exceeds the maximum shelter amount, in which case the shelter cost shall be the actual cost for heat.)

Benefit Unit Size	Maximum Monthly Shelter Allowance
1	390
2	642
3	693
4	756
5	815
6 or more	844

. Shared Accomodation Shelter Expense Allocation

This topic is about the determination of the shelter component of budgetary requirements (BRs) when the benefit unit shares accomodation with persons who are not in the benefit unit (BU). With the coming into force of Reg 310/10 on 11 August 2010, these rules changed fundamentally.

The 'old rules' allocated one rent portion to each of the recipient and spouse (if any) - but none to the BU children - and then one rent portion to every non-BU resident, regardless of age. The total rent was then divided equally between each person to whom a rent portion was attributed, and that amount - totalled for all 'counting' members of the benefit unit - was the shelter component of budgetary requirements for the benefit unit.

Additionally under the old rules, no rent portion was to be allocated to any of the following co-residents:

• a person, not necessarily a member of the benefit unit, who provided daily physical assistance on an ongoing basis to the recipient or spouse where the recipient or spouse required assistance in order to function in a community setting (a "care-giver");
  
  
• a lodger residing with the benefit unit, paying rent to a member of the benefit unit;
  
  
• a person who provided lodging, with or without meals, to an applicant or recipient;
  
  
• a person living with their parents or the parents of their spouse (therefore recipients who live and share with their own parents are not counted towards the total amongst whom rent is shared).

When considering these 'old rules' (which will still apply to pre-11 August 2010 calculations), it is important to keep in mind that we are not discussing the amount of rent that any of the parties were legally required to contribute towards paying the total rent. That was (and still is) a matter of lease and contract law between the landlord and the co-residents, and amongst the co-residents. The 'old rules' were to determine how much welfare was going to give the benefit unit co-residents towards those legal obligations (aka their 'shelter allowance').

If anything, the net effect of the old rule was to attribute more rent-share to the non-benefit-unit co-residents, which sometimes had the effect of lowering the benefit unit's actual shelter allowance (as their rent allocation was correspondingly reduced). In reality this was not often the case as even this artificially-lowered shelter expense exceeded the shelter component maximum available to the benefit unit (see the chart immediately above).

The 'new rule', which involved a simple repeal of the above 'old rules', now allocates shelter expense to the benefit unit in accordance with their actual legal obligation to pay as determined by their lease and sharing terms established with the co-residents. That is, subject to the above-noted shelter component maximums, the 'rent' for welfare purposes, is in fact the 'real rent' - ie. "the actual cost payable for shelter" [Reg 42(2)1].

However, as a matter of residential landlord and tenant law, there is no legal duty amongst co-tenants to allocate rent equally amongst themselves. This being the case, recipients and their (friendly) co-residents, now have an incentive to set the rent portion attributable to the benefit unit at precisely the maximum amount available to it from welfare. This is the same practice commonly used by ODSP recipients who reside with their parents, whereby the rent payable to the parent/s is set at the maximum shelter amount allowed under ODSP law (often with open welfare worker complicity).

While - in my humble (but probably isolated) opinion - to do so amounts to a conspiracy to commit fraud (artificial inflation of a compensable expense is a common form of fraud), such contrived 'rent-splitting' agreements will almost certainly result from the abolition of the 'old' rent allocation rules. Further, since the effect of the rule change is easy to predict, the strongest conclusion is that this was the intention of the rule change as well, designed to benefit recipients who will now at least have their shelter component determined in a manner that more closely reflects reality (only 'more' closely since the shelter maximums are still unrealistically low in light of market rents).

Interestingly then, this new scheme may reflect the operation of middle class legal morality - for whom such schemes in an income tax context would be routine and rarely questioned - in favour of social assistance recipients. This would be unobjectionable but for the fact that income tax fraud by the middle class is rarely vigorously prosecuted, while social assistance fraud is much more closely monitored and enforced. In essence: the provincial government and welfare authorities are inviting recipients and their co-residents to conspire to artificially inflate the amount of rent attributed to recipients. The only relevant party not consulted or party to the scheme however is the courts, and if they ever find such a scheme to be illegal, then it is only the recipient and co-residents that will suffer for it.

Lastly, as noted above, where recipients are acting as landlords or chief tenants (subletting) then this is not a "sharing" situation. In such cases the recipient's shelter expenses are calculated as non-sharing according to the normal rules, but any rental income is assessed separately for income chargeability under special rules (see Ch.6 "Income Rules").

. Shared Accomodation Shelter Expense Allocation in Public Housing

While the 'old' rent portion BR allocation rules discussed above have been revoked, one anomalous exception remains 'on the books' [Reg s.42(2)5]:

Reg 42(2)5
If an applicant or a recipient is a tenant of an authority or agency that provides low rental housing accommodation on behalf of Canada, Ontario or a municipality, shelter does not include that portion of the rent for which the applicant or recipient is liable with respect to a person living in that rental accommodation who is not a member of the benefit unit.

Of course, the 'portioning' referred to here is not the now-revoked budgetary requirements (BR) 'portioning', as this portioning refers to the 'real rent' being charged. However this is no less troublesome a rule as landlords, public or private, do not allocate 'rent portions' to each tenant or resident - rather rents are global amounts which all residents are jointly and severally responsible for. And lacking even an old-style BR portioning scheme, there is no logical manner of determining the "portion of the rent for which the applicant or recipient is liable with respect to a person living in that rental accommodation who is not a member of the benefit unit".

Luckily, co-residence by non-welfare recipients in subsidized housing is rare, and even then usually illegal - so the anomaly may have little actual risk of application.

Again and as noted above, where recipients are acting as landlords or chief tenants (subletting) then this is not a "sharing" situation. In such cases the recipient's shelter expenses are calculated as non-sharing according to the normal rules, but any rental income is assessed for chargeability under special rules (see Ch.6 "Income Rules"). In any event, situations of rent-paying subtenants do not typically apply to public housing due to rules barring such arrangements.

(d) Northern Supplement

If the benefit unit resides north of the 50th parallel and does not have year round road access then add the following amounts to "budgetary requirements" [Reg 41(1)2]:

# of Non-Spousal Dependents	Recipient	Recipient and Spouse
0	272	403
1	430	502
2	526	602

For each additional dependent: $102


3. "Boarders and Lodgers"

(a) Background

Welfare has a separate way of calculating budgetary requirements where the recipient "receives board and lodging from the same source" [Reg s.44(1)] (as opposed to "renters and owners", discussed above). The assistance provided 'boarders' and 'lodgers' (as will be seen below) is calculated differently from - and is usually significantly less - than that for renters.

The dual terms "boarders' and 'lodgers' are old common law terms that refer to what are technically known as 'licensees' - a term largely superceded by statutory changes rolling them into residential tenancy law. Historically, a "license" differs from a "tenancy" (ie. a "renter", as discussed above) primarily by the absence of a right of "exclusive possession" of the premises by the occupant (ie. the licensee was granted reasonable use of the premises but had to share it with others). The fuller test for a licensee as opposed to a renter is flexible and looks at a variety of characteristics (all of which are judged cumulatively), such as (there can be more):

• exclusive possession (the primary criterion: the occupant does not have the contractual right to sole possession of the premises);
  
  
• only one private room;
  
  
• a shared bathroom and/or kitchen (ie. the unit is not self-contained);
  
  
• whether the unit is part of a building referred to as a 'boarding house' for municipal regulation purposes.

A "boarder" is a licensee who got a room and meals (although technically it could mean just meals), while a "lodger" only got a room.

(b) Welfare Misinterpretation

These old distinctions still persist in welfare law - although they are usually misinterpreted by welfare authorities (see the discussion immediately following) who tend to lump lodgers (who don't get meals) in with boarders all under the statutory phrasing "board and lodging". In short, welfare tends to place all 'licensees' under the "board and lodging" category, which is inappropriate as the term really only covers 'boarders'.

Because of this, 'lodgers' (room only) should not complacently accept the categorization placed on them by welfare administration, and may want to consider advocating for or appealing for a change to "renter" (their appropriate category) in order to increase assistance.

Another problem - which rarely arises in practice, but can - is that a recipient living in a full tenancy (ie. a conventional apartment with exclusive possession) can occasionally get meals included in the arrangement as well. These situations arise sometimes when older parents allow their adult son or daughter to reside in a separate self-contained apartment (where they are not subject to the special "living with parents" BR determination as per s.12 below) - attached or close to the main family home - with parents providing meals for their child.

Such a recipient would be likely characterized improperly by welfare as a 'board and lodger' where properly they should be treated as a "renter" for purposes of calculating budgetary requirements, because while they get 'board' they are not 'lodgers' - so that the statutory language "board and lodging" does not apply. Again - when welfare law refers to a 'boarder and lodger' what it properly means is a licensee - not a tenant.

All that said, which categorization of living arrangement is most advantageous to the recipient is not always clear-cut. Calculations should be run under both "renter" (above) and 'board and lodger' (below) formulas to determine which generates the greater "budgetary requirements" to benefit the recipient. Recipients can then advocate - or even restructure - their situations accordingly.

(c) Budgetary Requirements Calculation

The total of the following items determines the budgetary requirements of "boarder/lodger":

• Boarding and Lodging Component [s.3(d) below]
  
• Northern supplement [s.3(e) below]
  
• Special diet [s.4 below]
  
• Advanced age supplement [s.5 below]
  
• Pregnancy Supplement [s.6 below]
  
• $71 Special Boarder Allowance [Reg 44(1)5]

Note Re Shared Custody or Shared CCTB Eligibility for a Dependent Minor

Where an applicant/recipient shares either physical custody of a child, or shares eligibility for the Canada Child Tax Benefit on behalf of the child, most non-shelter elements of budgetary requirements above (ie. northern allowance, special diet and pregnancy supplement) are reduced by 50% of the amount attributable to that child [Reg s.44.2]. Such 'sharing' of dependent minor children is further discussed at Ch.2, s.4(b).

(d) "Boarding and Lodging" Component [Reg s.44(1)]

The "boarding and lodging" component is determined by this table [Reg s.44(1)1]:

# of Non-Spousal Dependents	Dependents 18 plus	Dependents under 18	Recipient	Recipient and Spouse
0	0	0	533	688
1	0	1	664	752
1	1	0	752	790
2	0	2	737	813
2	1	1	825	851
2	2	0	873	887
3	0	3	806	874
3	1	2	892	912
3	2	1	942	948
3	3	0	980	984

For each additional dependent 18 years and older of a sole-support parent: add $120.
For each additional dependent under 18 of a sole-support parent: add $69.

For each additional dependent 18 years and older otherwise: add $100.
For each additional dependent under 18 otherwise: add $61.

Note:
Since July 2008 budgetary requirements for children were reduced in conjunction with the introduction of the Ontario Child Benefit (OCB) and the elimination of the National Child Benefit Supplement (NCBS) clawback. Under this change recipients are, for the most part, presumed to be in receipt of OCB and the NCBS - thus making up for the budgetary requirements reduction. The Ontario Child Benefit scheme is explained in detail at Ch.6, s.6.

(e) "Boarding and Lodging" Northern Supplement

If the benefit unit resides north of the 50th parallel and does not have year round road access then additional amounts are added as follows [Reg 44(1)2]:

# of Non-Spousal Dependents	Recipient	Recipient and Spouse
0	272	403
1	420	485
2	511	578
3	605	672

For each additional dependent: $99

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