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4. Special Diet Supplement

(a) Overview

Until amendments to the General Regulation in November of 2005 administrators had broad discretionary authority to grant a "special diet" supplement of up to $250 per member of the benefit unit upon being provided with medical verification of it's need (the supplement was added to the benefit unit's budgetary requirements). The program was quickly and enthusiastically picked up by recipients, social workers, medical professionals, advocates - and even welfare workers - who saw this as a way to redress chronically inadequate social assistance rates, which often resulted in poor diet amongst an already marginalized class.

Since that time the province has moved to heavily codify the special diet supplement by establishing a Schedule listing specific eligible medical conditions and fixed amounts that are allocated to each of them, though still capping the supplement at a total of $250. The current Schedule is more plainly binding on administrators as it is now styled as "prescribed policy", and any element of discretion at the hands of the administrator with respect to amount has been removed. Under the current Schedule many conditions previously granted (under the general theme that 'good nutrition is good for health') are now simply unlisted (and thus not eligible for coverage), presumably because the province only wants to cover conditions that have specific dietary therapies.

The Schedule is located at the end of this Regulation:

Reg.564/05: Prescribed Policy Statements
(b) Eligibility

The special diet supplement is available to any member of a benefit unit in any of the following categories of recipients:

• Renters and Home Owners [Reg s.41(1)4] (see s.2 above)
  
• Boarding and Lodging [Reg s.44(1)3] (see s.3 above)
  
• Children of Dependent Offspring [Reg s.44(2)5] (see s.10 below)
  
• Living with Parents [Reg s.44(3)3] (see s.12 below)
  
• Minor Children in Temporary Care [Reg s.57(5)(c)] (see s.11 below)

Of course, in the case of "Children of Dependent Offspring" the special diet supplement is for the dependent child of the dependent offspring only. As well, in the case of "Minor Children Living in Temporary Care" the special diet supplement is for the benefit of the minor child, and the re-verification duties fall on the responsible adult.

Documentation requirements have also changed over time to become more stringent. As before, current rules require the member to, for either an initial and a re-assessment application, provide the administrator with an application form completed by an "approved health professional". The application must verify the medical condition on which the application is based [General Reg 41(2)1, 44(6)1, 57(9)1].

"Approved health professional" for this purpose [ie. approved by policy of the Director of Ontario Works: Reg s.2(4)], includes [Policy Directive 6.6]:

• doctors,
  
• registered nurses in the extended class,
  
• registered dieticians,
  
• registered midwives, or traditional aboriginal midwives recognized and accredited by their community, but either with respect to inadequate lactation to sustain breast-feeding and/or where breast-feeding is contraindicated

Under current rules however, the administrator can at their discretion, impose either or both of two additional requirements:

• a separate application re-verifying the medical condition, though this one must be from a different health professional (ie. one that has not completed any prior applications for the member) [General Reg 41(2)3, 44(6)3, 57(9)3]; and
  
  
• that the member provide them with additional (and otherwise unspecified) "information respecting his or her requirement for a special diet because of a medical condition" [General Reg 36(2), 41(2)2, 44(6)2, 57(9)2].
  
  This second requirement is quite open-ended, and failure to comply with it can result in the benefit unit's budgetary requirements being reduced by "the amount of the budgetary requirement for a special diet because of a medical condition" [General Reg 36(1)]. This provision is ambiguous however as it fails to specify whether it voids only the special diet of the non-compliant member, or that of all the members of the benefit unit (conventional statutory interpretation principles would limit it to supplement otherwise due to the non-compliant member only).

Once established, the special diet supplement runs from the month that the administrator grants it forward until and including the month that the administrator requires re-verification [General Reg 41(1)4, 44(1)3, 44(2)5, 44(3)3, 57(5)(c)].

(c) Transition

Note: The transition provisions explained below [Reg 41(3), 44(7) and 57(10)] were repealed 31 January 2014, and so do not apply past that date.

Members who, at 31 March 2011, were either already receiving a special diet supplement under the rules as they existed at that time, or who had made application on or before that date, are subject to temporary grand-parenting rules. In such cases these prior rates and rules last for three months, or until the administrator makes a re-assessment of entitlement on the member's re-application, whichever comes first [General Reg 41(3), 44(7), 57(10(].

Case Note: Bigras v Ontario (Div Ct, 2008)

Two recipients who had their special diet amounts re-assessed and reduced under pre-2011 transition rules appealed the matter to the Social Benefits Tribunal, where they lost, and then upwards to the Divisional Court. They argued that their original ODSP eligbility grants, which had long-dated (and in one case no) medical review dates, entitled them to maintain their previous levels of special diet allowance - as a sort of 'vested interest'. The court disagreed, citing [ODSP] Reg s.29(1) which required that budgetary requirements (in which special diet is included) be (re-)calculated monthly, and established principles of statutory interpretation that there is no permanent vesting of statutory entitlements in the recipient.

(d) Underinclusive Coverage and the Human Rights Code

The case of Ontario (Community and Social Services) v WB (Ont Div Ct, 2011) was a judicial review application, brought by the province, of the decision of an Ontario Human Rights Tribunal that upheld a complaint alleging discrimination of the basis of disability by virtue of the ODSP program's failure to accord special diet allowance respecting the applicant's specific medical condition (ie. it was unlisted in Schedule 1 to the ODSP Special Diet Regulation). The case was initially brought under the old pre-2008 Human Rights Code.

As restated by the court, the Tribunal posited the following (new at the time) test in making it's determination:

[12] Consistent with this purpose for the program, the Tribunal then concluded that to establish disability-based discrimination related to the special diet allowance as currently structured, a complainant must demonstrate that four conditions are satisfied:

1. The complainant’s claim of discrimination is based on a disability or disabilities;

2. There is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the claimant’s disability or disabilities;

3. The diet leads to additional food costs as compared with a regular, healthy diet for a person without the disability or disabilities; and

4. There is no funding for the additional costs, or the funding is significantly disproportionate to the actual costs (up to the maximum of $250).

While the Tribunal found that there was adequate evidence supporting satisfaction of all elements of this test, the court concluded that there was no evidence supporting the first three elements (not even the diagnosis), thus rendering consideration of the fourth moot.

That said, the court implicitly endorsed the above-stated test in the narrow circumstances of alleging underinclusiveness within the special diet regimes of both ODSP and, since the Ontario Works regimes is identical, that regime as well. It openly invited the parties to commence new proceedings before the (now) Human Rights Tribunal of Ontario (HRTO) with improved evidence. The whole case, particularly paras 40-43, is essential reading for anyone contemplating a similar special diet underinclusiveness challenge.

While the original complaints (there where three complainants below) also involved claims that the regime was discriminatory for underfunding of the conditions that it did list in the Schedule, that issue was not before the court. However the above-stated test articulated by the Tribunal may be suited to address underfunding claims as well.


5. Advanced Age Supplement

This is an amount of $44 for each member of the benefit unit who is 65 or older.

As a practical matter it is uncommon to see recipients over 65 years of age as at that point their federal pension entitlements [ie. OAS, Guaranteed Income Supplement (GIS), and CPP] are normally high enough to disentitle the recipient from eligibility on income grounds (plus seniors get a drug card from the province as of right).

This supplement is provided under both the renter/owner and the boarder/lodger categories:

• Renter and Owner [Reg 41(1)5] (see s.2 above)
  
• Boarding and Lodging [Reg 44(1)4] (see s.3 above)

6. Pregnancy Supplement

Once a pregnancy is confirmed by an "approved health professional" [approved by policy of the Director of Ontario Works: Reg s.2(4)] an additional supplement is available from that month forward to and including the month of birth, and then for another 12 months if the baby is breast-fed. The amount of the monthly supplement shall be:

• $40; or
  
  
• $50, if an approved health professional confirms that
  the person requires a non-dairy diet.

"Approved health professionals" for this purpose are:

• doctors,
  
• registered nurses in the extended class,
  
• registered dieticians,
  
• registered midwives or traditional aboriginal midwives recognized and accredited by their community

This supplement is provided as follows under a number of separate but essentially identical provisions in the General Regulation:

• Renters and Home Owners [Reg s.41(1)6] (see s.2 above)
  
• Boarding and Lodging [Reg s.44(1)6] (see s.3 above)
  
• Children of Dependent Offspring [Reg s.44(2)6] (see s.10 below)
  
• Living with Parents [Reg s.44(3)5] (see s.12 below)
  
• Minor Children in Temporary Care [Reg s.57(5)(e)] (see s.11 below)

7. Sponsored Immigrants

(a) Overview

A chronic problem in welfare law has been the treatment of income "available" to sponsored immigrants when their sponsor refuses to pay it (normally, sponsorship income reduces assistance dollar-for-dollar). Keep in mind the 'duty to realize available assets' discussed in Ch.7 "Asset Rules".

Of particular concern were situations where the immigrant continued to live in premises owned or controlled by the defaulting sponsor. If rent were paid by the recipient the net effect was that of the welfare administrator "paying" the landlord/sponsor while the sponsor continued to ignore their responsibilities.

Prior to amendments to the General Regulation in December of 2004, welfare law tried to redress this situation by "deeming" an income charge of $100 against sponsor- defaulting immigrants, which resulted in their assistance being reduced by $100. This deduction was imposed even when the immigrant had no control over the abandonment, and it was subject to legal challenge and criticism as being discriminatory on the basis of race, ethnic origin, etc. It was welfare's flawed attempt to 'get at' the situation through the often innocent recipient because they could not 'get at' the defaulting sponsor directly.

By virtue of the December 2004 amendments the province acknowledged the discrimination in its former approach and promulgated (somewhat convoluted) amendments which restructured the situation of the sponsor-defaulting immigrant applicant. This amended law is explained below.

Case Note:
Where a sponsored immigrant makes use of social assistance, the assistance provider has a statutory entitlement, which is contractual in nature, to recover the amount of assistance provided as a debt: Mavi v Canada (SCC, 2011). This right may be enforced by filing a ministerial certificate in federal court, or any provincial court of competent jurisdiction. The decision to pursue debt recovery is subject to a duty of procedural fairness, as follows:

[5] In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. The content of this duty is fairly minimal. The Crown is obliged prior to filing a certificate of debt with the Federal Court (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. This is a purely administrative process. It is a matter of debt collection. There is no obligation on the government decision maker to give reasons. .....

(b) Budgetary Requirements of Recipients NOT Living in Sponsor-Controlled Premises

The situation for sponsored immigrants who live in premises NOT owned or controlled by a sponsor is simple. They are treated as normal applicants subject to normal budgetary requirement determination, and no "deemed income" rule.

(c) Treatment of Recipients Living in Sponsor-Controlled Premises

. Overview

However, the situation of the sponsored immigrants who reside in premises controlled in whole or part by the sponsor is not simple.

The first rule here is that the amount of sponsorship income paid or "available" (as determined by the administrator) is deducted from assistance dollar-for-dollar, period.

If however the amount paid or "available" is zero (defaulting sponsor) or small, then further rules apply. In these cases the applicants are granted the "basic needs" component of the budgetary requirements, but (with exceptions noted below) are denied the "shelter" component. Technically, the denial of the shelter component is achieved by use of a "deemed income" rule as set out below. Recall that "deemed income" has the effect of reducing assistance dollar-for-dollar in the amount of the "deemed income".

. Calculation of "Deemed Income"

Now all sponsored immigrants are "deemed" to have income at a level which is the GREATER of "A" or "B" below [Reg s.51]:

A. the monthly amount paid and/or "available" (as determined by the welfare administrator) to the member of the benefit unit under the immigration sponsorship;

B. the result of the following formula:

i. the monthly amount of budgetary requirements as calculated under the "renter/owner" rules (see s.2 above) minus

ii. the amount set out in the below table:

# of Non-Spousal Dependents	Dependents 18 plus	Dependents 0-17 yrs	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.

If the "A" deemed income applies then the administrator has designated the amount "available" (or actually paid) and simply deducts this dollar-for dollar from the monthly assistance.

If B applies the effect is to preserve the basic needs component. Note that the chart at B(ii) is the same one used to determine the "basic needs" component of budgetary requirements under the "renter/owner" rules. By subtracting this from the "deemed income" deduction the effect is to preserve the "basic needs" component of the budgetary requirements for the applicant.

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, basic needs 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).

. Exceptions

In any of the following circumstances, the "deemed income" above shall itself be deemed to be zero (thus restoring normal shelter component rules and coverage for shelter):

• the sponsor is in receipt of or eligible for social assistance (either welfare or ODSP);
  
  
• the sponsor receives the Guaranteed Income Supplement (GIS) under the Old Age Security Act (Canada) (this is a 'top-up to the OAS') OR a GAINS-Senior allowance under the Ontario Guaranteed Annual Income Act;
  
  
• the sponsorship undertaking has broken down by reason of domestic violence;
  
  
• the recipient has a legal obligation to contribute to any element of shelter expense for the premises (see s.2(c) above for a list of these items);
  
  
• the recipient, in order to continue to reside in the premises, is "required" by the sponsor to pay for shelter.

. Comment

In my view these new rules are complex and achieve little.

This is not to say that the problem they attempt to address does not occur, but that the response is excessively complicated and amounts simply to a repudiation of the formerly punitive rules "$100 deemed income" rules. This could have been achieved by a simple repeal.

Further, the primary mischief to which this whole scheme is directed occured when defaulting sponsors 'rented' to the sponsored immigrant who then 'passed on' this charge to welfare through the shelter allowance. But these new rules are excepted in just that situation (above): ie. where the immigrant is either under a 'legal obligation to' or 'required to' pay rent to continue to reside in the premises. That requirement is no more or less than is required in any tenancy relationship.


8. Prisoners

(a) General

The ineligibility rule for persons in penal facilities is set out in Ch.2: "Claimants: Prisoners". Below I explain the application of this rule.

If the person is placed in a penal facility while they are on welfare, the following rules apply with respect to their budgetary requirements [Reg s.46]:

• upon detention, budgetary requirements are reduced on a pro-rated basis by the number of days of the month in which the person is detained (ie. they end immediately, but the recipient gets the part month that they were out of prison);
  
  
• during full months of detention budgetary requirements are deemed to be zero, so no assistance is payable;
  
  
• upon release:
  
  - the basic needs component of budgetary requirements are reduced on a pro-rated basis by the number of days of the month in which the person is detained (ie. it restarts immediately on request, but the recipient only gets it for the part month they are out of prison), and
  
  - the shelter component may (at the discretion of the welfare administrator) be similarly treated (of course, the administrator can also grant the whole month's shelter component).

The key practical points are that recipients should immediately advise welfare on both incarceration and release. Failure to advise welfare on incarceration and allowing assistance to accumulate will result in an eventual overpayment assessment (see Ch.9 "Administrator Decisions" and potential fraud charges. Failure to advise welfare on release will delay the recommencement of assistance.

(b) Community Residence while on Temporary Absence, Parole, Probation or Conditional Sentence

The budgetary requirements of a person on temporary absence, parole, probation or on conditional sentence from a prison, and who are residing in a community residence funded by the Ministry of Community Safety and Corrections, is $149/month [Reg 43(3)].


9. Institutional Residents

(a) Overview

Persons who live in institutions that provide for their basic needs and shelter are not eligible for welfare unless the institution is [Reg s.7]:

• a long-term care home (under the Long-Term Care Homes Act [Reg s.1 "long-term care home"] (formerly a "nursing home"),
  
  
• an interval or transition home for abused women,
  
  
• a hospital,
  
  
• an emergency hostel (a place where board, lodging and personal needs are provided to homeless persons on a short term, infrequent basis) [Reg s.1 "emergency hostel services"], or
  
  
• a residential substance abuse recovery program.

Each of these categories is discussed below in the following sub-sections.

Note that persons resident in 'other' (ie. non-excepted) institutions may have categorical eligibility for ODSP: see the ODSP Legal Guide, Ch.7, s.8: "Income Support: Institutional Residents".

Rates for persons in such institutions vary but are generally based on a "personal needs allowance" (or "PNA"). Transition provisions to assist with preserving prior accomodation in the hope of return are available for residents of women's shelters and hospitals, and reduction of long-term hospital "budgetary requirements" are at the discretion of the administrator (see below).

Further, administrators have discretion in reducing the budgetary requirements of recipients in hospital, women's shelters, and in residential substance addiction treatment programs.

(b) Long-Term Care Home Residents

Long-term care homes (formerly 'nursing homes') are regulated by the province under the Long-Term Care Homes Act, though they often operate jointly with "retirement homes" which are governed primarily under the Residential Tenancies Act. Determining the status of any particular residence should be a matter of simple inquiry, though some unregulated premises do exist.

The vast majority of long-term care home residents are over 65 years of age and are thus in receipt of Old Age Security, GIS and/or CPP retirement pensions and thus are ineligible for welfare by reason of excess income.

In any event, the total budgetary requirement of a recipient in a long-term care home is $149 [Reg s.43(1)] for "each member of the benefit unit".

This allowance - also applied to other "institutional residents" (such as homeless shelters) is commonly referred to as a 'PNA', or 'personal needs allowance'. The PNA calculation is based on the non-food part of a basic needs component (ie. clothes and miscellaneous), as it is anticipated that rent and food are otherwise provided.

(c) Women's Shelter Residents

The standard budgetary requirements of a woman residing in "an interval or transition home for abused women" (a women's shelter) is a personal needs allowance (PNA) - per member of the benefit unit - as follows [Reg s.44.1(2,3)]:

• Dec 2010 to Nov 2011 ... $130
  
• Dec 2011 to Nov 2012 ... $132
  
• Dec 2012 to Nov 2013 ... $134
  
• Dec 2013 to Nov 2014 ... $136
  
• Dec 2014 to Nov 2015 ... $138
  
• Dec 2015 to Nov 2016 ... $140
  
• Dec 2016 to Sept 2017 ... $143
  
• Oct 2017 to Sept 2018 ... $146
  
• Oct 2018 on ... $149

However, to assist in preserving a residence, the woman's budgetary requirements will be calculated as though she still lived at home for the first three months of residence in the women's shelter [ie. under the normal rules that apply to "renters and owners" or "boarders and lodgers", above (as applicable)] [Reg s.44.1(1)]. After three months however the welfare administrator may (at their discretion) reduce the budgetary requirements, but not below the PNA level [Reg s.44.1(2)].

(d) Hospital Patients

For the first three months of hospitalization no budgetary requirement reductions may be made against a member of the benefit unit that is a hospital patients, so for that time it is just as though they still lived "at home" [Reg s.47]. However, after that point the administrator may - at their discretion - apply reductions, which typically first involve ending the basic needs component (food and clothing) only [Reg s.47]. Unlike the situation for a woman in a woman's shelter (above, where the discretionary reduction may not be less than the PNA rate), there is no restriction on how much the administrator may reduce assistance (ie. it could be down to zero).

(e) Homeless

. Living "Rough"

The welfare eligibility of persons 'living rough' (ie. bus shelters, ravines, bushes, etc) is commonly misunderstood. Homeless persons are entitled to welfare and can apply at any office [Reg s.4(2)].

Such recipients are clearly entitled to the "basic needs" component of their budgetary requirements under the same category as "renters and owners" (at 31 August 2010: $221), and normal benefits as well. However, almost completely neglected is the imaginative use of the shelter component under Reg s.41 with respect to non-rent shelter expenses such as heating fuel, water, building supplies, etc [see s.2(c): "Shelter Definition", above]). The definition of 'shelter' [ie. a "dwelling place used as a principal residence": Reg s.42(1)] is broad enough to capture irregular living arrangements such as tenting, lean-tos, etc.

Homeless persons should keep receipts for any such expenses (even third party letters and/or affidavits verifying such expenditures might suffice) and present them to the welfare administrator for 'compensation' in their next cheque. Note that this would be a novel practice and should expect some administrator resistance: see Ch.10 "Appeals and Other Remedies", especially "interim assistance".

. Homeless Shelter Residents

Homeless shelter services (aka "emergency hostel services") are defined as [Reg s.1(1)]:

... the provision of board, lodging and personal needs to homeless persons on a short term, infrequent basis, but does not include the provision of services to residents of interval or transition homes for abused women;

Welfare pays homeless shelters between $41.60 and $45.70 (at December 2008) daily for expenses relating to their services, and the shelter may or may not provide a small cash allowance to the resident. There is no statutory requirements that homeless shelter residents receive any fixed amount by virtue of being resident in the shelter, as welfare has full discretion in that regard [Reg s.43(2)].

However, like persons 'living rough' (above), persons staying in homeless shelters are not by that fact disentitled from applying for welfare in the normal fashion, and should do so. While no shelter allowance will be payable, a basic needs allowance (at 31 August 2010: $221) and other benefits are available to them.

. "Crashing"

Temporary stays with friends and family, without any rent payment arrangements, fall into the same treatment as "living rough". Welfare adminstrators however will be strongly inclined to treat such arrangements as quasi-permanent for administrative convenience.

If the host is prepared to accept a role as "landlord" - however temporary - then "rent" may be charged and the "tenant" would then be entitled to a shelter component to their assistance. However legally this may establish a "tenancy" governed under the Residential Tenancies Act (RTA), with all it's incumbent legal rights and duties - a burden which the host may not be prepared to accept. Note that the following accomodation is categorically exempt from the application of the RTA [RTA s.5]:

... living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouse's child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

(f) Residential Substance Addiction Treatment Programs

Similar to recipients who become hospitalized, a recipient who enters a "residential substance addiction treatment" program may have their budgetary requirements reduced at the discretion of the welfare administrator, but only after they have been in the program for three months [Reg s.47.1].


10. Minor Sole-Support Parents

(a) Overview

As is noted in Ch.2 "Claimants", "dependent adults" and "dependent minors" receive welfare assistance through their parents' benefit unit - not directly as "applicants". However if such dependents have their own offspring the dependents may collect assistance on behalf of their offspring in a technically separate benefit unit.

Practically, all of these situations of dependent parents will involve single parents because having a "spouse" will automatically end their "financial dependency" status, and thus their "dependency" status as well (see Ch.2 "Claimants: Financial Independence").

"Independent minors" on the other hand collect assistance in their own right - so any assistance for their offspring is included in one main benefit unit. Of course, they are subject to a range of special pre-conditions to eligibility and as well trustee requirements (see Ch.2 "Claimants: Minors: Independent Minors").

Dual-parent independent minors are governed by normal budgetary requirements rules (typically, "renter/owner") which are explained at s.2 above.

The determination of budgetary requirements that follow in this section applies to "sole-support" parent dependents [under either welfare or ODSP: Reg s.44(2)] and "sole-support" parent independent minors under welfare.

(b) Budgetary Requirements

The budgetary requirements for the above-described recipients are the total of the following [Reg s.44(2)1]:

• the applicable amount from this table:
  
  

  No. of Dependents (of the Minor Dependent)	Maximum Amounts
  1	366
  2	419
  3	479
  4	537
  5 or more	568

  
  
• if recipient lives north of the 50th parallel and is without year round access then an additional $212 for the first dependent, $98 for the second dependent and $102 for any subsequent dependents, if any;
  
  
• Special Diet Supplement (see s.4, above)
  
  
• Pregnancy Supplement (see s.6, above) [note that this is for the pregnant child of the dependent offspring; the dependent offspring collects through pregnancy allowance through her own main benefit unit]

11. Minors in Temporary Care

(a) Overview

This section deals with situations where young minors are without any parental support. In such cases the minor children are usually involved with the Children's Aid Society, who places them in "temporary care" in a contractual arrangement with a foster parent.

Assistance can be paid to such an adult on behalf of a "minor in temporary care" (for legal definition, see Ch.2 "Claimants: Minors in Temporary Care").

The financial eligibility requirement of the minor in such a case is a simple "financial need" criterion. "Financial need" occurs where the minor's budgetary requirements exceed income and the minor's assets are $500 or less [for these purposes, income does not include amounts paid on behalf of a child who is receiving CAS services where the child is not in care].

A payment made by a children's aid society for services where there are reasonable and probable grounds to believe that the child is in need of protection, made under s.32(1)(b) of Reg 156/18 of the Child, Youth and Family Services Act, and the child has not been placed in the society's care, is exempt income for these purposes [Reg 57(1)4.1].

(b) General Budgetary Requirements

"Budgetary requirements" for a minor in temporary care are determined by the total of the following [Reg s.57(5)]:

• $274 for the first minor and $224 for each additional
  
  OR
  
  where the minor or the adult applicant lives north of the 50th parallel and is without year round transportation: $440 for the first minor and $326 for each additional;
  
  
• special diet (see s.4, above)
  
  
• the value of other benefits that the minor may have as a welfare recipient: these include include drug and health benefits, eye tests and the guide dog allowance. [Reg s.57(5)(d)](see Ch.4 "Benefits")
  
  
• pregnancy supplement (see s.6, above) (note this is for pregnancy of the minor, not the custodial adult)

12. Living with Parents

(a) Overview

Any independent adult or independent minor who resides with their parents is subject to special budgetary requirement rules. These rules do not apply to dependent adults or minors (who - by definition - live with their parents) because they collect assistance as part of their parents' benefit unit.

Note that "parent" includes not only biological parents but "a person who has demonstrated a settled intention to treat a child as a child of his or her family".

These rules provide that independent offspring living with their parents have budgetary requirements calculated in the same fashion as a 'renter/owner' (see s.2 above), but with a "special boarder allowance" being substituted for the more generous shelter allowance.

However, there are several broad exceptions to the application of this rule [see (g) below].

(b) Budgetary Requirements

An independent minor or adult who lives with their parents has their budgetary requirements calculated as the sum of the following [Reg s.44(3)]:

• Basic Needs Component [explained at s.2(b) above]
  
• Northern supplement [explained at s.2(d) above]
  
• Special diet [s.4 above]
  
• $71 special boarder allowance;
  
• Pregnancy Supplement [s.6 above]

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 component, 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).

(c) Basic Needs Component [Reg 44(3)1]

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

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

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.

(d) 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 s.44(3)2]:

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

For each additional dependent: $102

(e) Special Diet (see s.4, above)

(f) Pregnancy Supplement (see section 6, above)

(g) Exceptions

Exceptions to the above budgetary requirments calculation rule are quite broad (see below). If any of these exceptions apply then the applicant and their benefit unit will avoid the above "living with parents" budgetary requirement calculation.

Of course this is only worthwhile if the alternative budgetary requirement (BR) calculation is more advantageous, and the most common case of this would be where the full "renter/owner" calculation could apply - such as where the offspring is either lodging (without meals) for pay in their parent/s' home, or residing for pay in fully self-contained premises in the same building that the parents live (such as a basement apartment)(see s.2: "Renters and Home Owners", above).

The exceptions include when:

• the parent with whom the applicant lives receives the Guaranteed Income Supplement (GIS) under the Old Age Security Act (Canada) (this is a supplement to the OAS) OR a GAINS-Senior allowance under the Ontario Guaranteed Annual Income Act;
  
  
• the applicant or their spouse rents or owns the premises in which they and the parent live;
  
  
• the applicant or their spouse have a legal obligation to pay for or contribute to any aspect of the shelter costs of the premises [as defined above in section 2(c)];
  
  
• the applicant is required to pay for shelter as a condition of continuing to co-reside with the parent in the parent's premises.

As noted, the last two exceptions are essentially landlord/tenant situations, and as such will cover situations where the parent/s charge their offspring rent. It is common (and tempting) in circumstances where an independent offspring resides in the parental home for parents to claim a rent charge to welfare, but in practice to excuse the adult child from making rent payments. Such practices are illegal and render all parties involved vulnerable to criminal charges for fraud. Bona fide rent arrangements are typically evidenced in actual money flows between the parties with a paper record being produced.

Where, as noted, the offspring are either bona fide renting a room (without meals) or a fully self-contained unit in their parent's house then their budgetary requirements should be calculated under the full 'renter/owner' rules. Note however that if the offspring is renting a room and getting meals, then their budgetary requirements fall under the 'boarder' rules set out in s.3 above.

(h) Opt-In to Dependent Status

An independent adult or minor to whom the above "living with parents" rule applies may also choose to elect or "opt-out" of "financial independent" status (and thus opt-in to "dependent" status) [Reg 44(5)]. By doing so they avoid the special "budgetary requirement" calculation rules that would otherwise apply.

This is only a practical option where the parent with whom they reside is also on - or eligible for - social assistance (either welfare or ODSP), for it is only in that situation that the applicant who takes the option can receive any assistance as a member of the parent's benefit unit. Recall that "dependent" adults or minors are categorically ineligible for assistance on their own [Reg s.11(1)(3)].