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Ontario Disability Support Program (ODSP) Law
(01 January 2016)

Chapter 2 - Claimants

    Terminology Notes
  1. Overview
    (a) General
    (b) Age
    (c) Absences from Ontario
  2. The Benefit Unit
    (a) Overview
    (b) Role of the Applicant/Recipient
  3. Spouses
    (a) Overview
    (b) Preliminary Note re Same-Sex Spouses
    (c) Definition of Spouse
    (d) Legal Responsibilities of Spouses
    (e) Investigation Issues
  4. Dependent Adults (Dependent Adult Offspring)
    (a) Overview
    (b) Financial Independence
    . Full Financial Independence
    . Temporary Financial Independence
    . Comment
    (c) Legal Responsibilities of Dependent Adults
    (d) Opt-In to Dependent Adult Status
  5. Dependent Minors
    (a) Overview
    (b) Definition
    (c) Shared Custody Dependent Minors
  6. Dependents With Offspring
  7. Lieutenant-Governor Assistance
  8. Substitutes for "Person with a Disability" (PWD) Status
    (a) General
    (b) "Grand-Parented" FBA Recipients
    (c) CPP and QPP-Disabled
    (d) Seniors Not OAS-Eligible
    (e) Institutional Residents
  9. Immigration Status
  10. Prisoners

________________________________________


Terminology Notes:

The term "children" can be confusing as it has two meanings in ODSP law. Firstly it means those under 18 years of age (minors), and secondly, it is used in the familial sense - meaning persons - of any age - who are the 'children' of their parents (offspring). To clarify I will supplement the language of the Act with the term 'minor' to refer to the first, and the term 'offspring' to refer to the second. For instance, 'minor offspring' will mean offspring who are under 18 years old - as opposed to "adult offspring". Quotations from the law may still use confusing terms, and I will attempt to clarify those when they occur.

Note as well that the definition of "parent" - which defines a relationship with "offspring" - extends beyond biological parents and includes those who have demonstrated a "settled intention to treat a child as part of his or her family" - except where they are doing this as a result of a fostering or children's residence contract [Reg s.1 "parent"].

The terms "applicant" (seeking income support) and "recipient" (receiving income support) are of course distinguished by the stage of the application process that they have reached. For the most part these terms can be used interchangeably. I will use the term that best fits the context.

1. Overview

(a) General

The key ODSP concept of the "benefit unit" - along with its constituent members: the applicant, spouse, and dependents (minor and adult offspring) - is discussed in this chapter.

Further, while ODSP recipients are primarily distinguished from welfare (Ontario Works) recipients by being medically found to be "persons with a disability" ("PWD") (see Ch.14), there are several categories of ODSP recipients who are granted exemption from having to prove PWD status status by virtue of their circumstances [Act s.3] (eg. CPP and QPP-Disability recipients, long-term facility residents, etc) - these are also considered in this chapter (s.8: "Substitutes for PWD Status"). Also covered are issues relating to specific categories of applicants that are defined by their personal or circumstantial characteristics: eg. immigrants, prisoners, etc.

Some categorical social assistance issues are addressed more directly under welfare (Ontario Works) law. These include: homeless, minors in temporary care, post-secondary students, and independent minors. For discussions of these issues see the welfare program at Ch.2 "Claimants" and Ch.3 "Basic Assistance".

Application issues for homeless persons are addressed in Ch.10 "Applications and Procedures".

Note that the categorical welfare ineligibility for post-secondary students does NOT occur in ODSP law, a situation which assists ODSP recipients in advancing their educational qualifications. However such recipients are under a "duty to realize all available resources" (see Ch.8: "Asset Rules") and thus should apply for any student assistance available (ie. OSAP).

(b) Age

Unlike the welfare (Ontario Works) program, there is no ODSP eligibility until the claimant is 18 years of age or older [Reg s.3]. Those not eligible under ODSP may be elible under the Ontario Works program (see that program), including those between the ages of 16-18 and those under 18 who have their own children.

While there is no disentitlement from ODSP when the recipient turns 65 or older, most recipients become income-disentitled at that age due to receipt of federal OAS and CPP. At that age they alse become eligible for some benefits outside of ODSP, in particular the senior's drug card.

(c) Absences from Ontario

ODSP applicants and recipients must be resident in Ontario [Act s.5]. Temporary absences of up to 30 days are allowed, but any longer absences will result in disentitlement unless they have been approved by the Director for 'health reasons', post-secondary education or exceptional circumstances [Reg s.7(1)].

For this purpose, an absence for 'health reasons' is justified where [Reg s,7(2,3)]:
  • it is to receive necessary medical treatment outside of Ontario that is prescribed by a physician; and

  • the medical treatment is an approved out of province or out of country insured service under the OHIP, as verified by a letter to that effect from the Ministry of Health and Long-Term Care.


2. The Benefit Unit

(a) Overview

The "benefit unit" is a co-resident group of people, grouped by ODSP law into family or family-like household units for purposes of determining financial eligibility and calculating the amount of income support entitlement.

The members of a benefit unit include the "applicant" (or "recipient") and their co-resident "dependents", as follows:
  • the "spouse" of the applicant, if any("spouses" are considered "dependents", and the definition or "spouse" includes same-sex relationships: see s.3 below);

  • "dependent children" (dependent minor offspring) of either the applicant or the spouse, if any (see s.5 below);

  • "dependent adults" (dependent adult offspring) of either the applicant or spouse, if any (see s.4 below)[Reg s.2(1)].
The main significance of the 'benefit unit' is that - generally (there are exceptions: see Ch.7: "Income Rules") - it is the total income and assets of all the members of the benefit unit that are counted for determining financial eligibility (ie. whether income and asset maximums are exceeded. Similarly, the total size and make-up of the benefit unit is used to calculate the amount of income support that the benefit unit will receive. In essence, the members of the benefit unit - rightly or wrongly - are legally assumed to maintain collective finances.

The characterization "dependent" is a legal one, not one based on the self-perception of the members of the benefit unit. Further, unless dependents satisfy any required information-disclosure, participation and/or school attendence requirements they will not be considered as part of the "benefit unit" for purposes of calculating income support.

Though it is rare, non-co-resident spouses can be included in the benefit unit "if the absence is for a reason other than a breakdown in the relationship with no reasonable prospect of reconciliation" [Reg s.1 "dependent"]. Typically this would be temporary work away from home.

If an applicant has no "dependents" (remember that spouses are dependents), they are simply "single persons" and form a one-person benefit unit.

The definitions and law relating to spouses, dependant adults (dependent adult offspring) and dependent children (dependent minor offspring) are covered below.

(b) Role of the Applicant/Recipient

While persons are grouped into benefit units for purposes of determining eligibility, income support is in fact paid to only one member of the benefit unit, called the 'applicant' or - once granted - the 'recipient'. A critical discussion of the concept of the "benefit unit" as a form of compulsory financial aggregation is located at Appendix 4 in the welfare program: "The Concept of Spousal Dependency".

In a typical two-spouse benefit unit, either spouse may apply and thus be the "applicant" and - if granted - the "recipient". The second spouse will by default become the "dependent spouse". There is no legal rule as to which spouse may "apply" as per gender or any other feature.

The normal payment procedure is for cheques or direct deposits to be made payable in the name of the applicant. However in the unusual case where retroactive payments become due to a spousal couple who have since separated, a court has ordered that the payment be split evenly between the two: Dowswell v Ontario (Director, ODSP) [2006] OJ #973 (QL) (Div Ct).

Other "dependents" [ie. "dependent children" (minor offspring) and "dependent adults" (adult offspring")] cannot - by definition - be applicants. Note however that if such adults are judged to be "financially independent", they thereby lose their "dependent" status and can only collect social assistance (typically welfare, though ODSP if they qualify medically) as "applicants" themselves. ODSP law (unlike welfare) does not have a category of "independent minor" (16-18) who can collect welfare in their own right (ie. as their own "benefit unit").

Of course, adult offspring who are not co-resident are legally independent in ODSP terms and are free to claim welfare (or ODSP if they qualify medically) in their own name and for their own dependents.


3. Spouses

(a) Overview

The issue of when another person (they can be minors) in the home is or is not a "spouse" is the most litigated issue in Ontario social assistance law. It has generated much judicial consideration regarding issues such as financial interdependence, "consortium" (a polite reference to sex), social 'presentation' and a range of other criteria. Most recently of course the issue has been extensively litigated over the issue of same-sex relationships - a concept now fully integrated into Ontario social assistance law.

In past, under the old Family Benefits Act (aka "mother's allowance") the issue of spousal status was key to determining whether the applicant was categorically eligible for an FBA allowance as a single parent. However, with the ending of the single parent eligibility class and the effective transfer of these recipients into the new (June 1998) Ontario Works regime the issue was no longer relevant to categorical ODSP eligibility. However it was still highly relevant - as spouses are still "dependents" within the applicant's benefit unit, and as such their assets and income are included in the total of the benefit unit's to determine collective financial eligibility for ODSP income support - and of course, assuming eligibility - the amount of income support provided to the benefit unit.

The litigation history of this issue is the subject of Appendix 4 in the welfare program: "The Concept of Spousal Dependency".

(b) Preliminary Note re Same-Sex Spouses

Following on earlier Charter litigation, "same-sex partner" amendments to the ODSP General Regulation in February 2000 and since have effectively brought such relationships under conventional ODSP treatment.

Ontario finally regularized their legislative treatment of gay and lesbian relationships in the Spousal Relationships Statute Law Amendment Act and related ODSP General Regulation changes in the summer of 2005. The eliminating of the definitional requirement that spouses be "of the opposite sex" facilitated the ending of the separate category of "same-sex partner", and such relationships are now included within the definition of "spouse".

Prior to the legal changes in 01 March 2000 which expanded same-sex partner rights, many gay and lesbian couples actually benefited financially from the legal situation since they were not forced into a joint benefit unit but were treated simply as 'roommates' or sharing tenants. As such one or both of them could go on ODSP (or welfare) without having the financial assets and income of the other counted against them for eligibility purposes. Two separate social assistance recipients generally get a higher rate than a spousal couple.

The legislative changes have necessitated a re-assessment of these relationship situations. To address this the amending law provided for the Director to review the files of all recipients potentially effected by the change to determine the nature of the relationship. Once this is done a new determination as to status will be made. Such determinations will NOT be retroactive, and will only take effect from the date of the new determination forward [Reg s.72]. In most cases this will result in a net decrease of income into the gay or lesbian household, as many of them will now be disentitled by the combined spousal income or assets.

In those relatively few cases were one partner is on welfare and the other is on ODSP, the one on welfare will be disentitled from welfare but will be re-classified as a dependent spouse of the ODSP recipient. The income support for such a new two-person ODSP benefit unit will increase to the rate for an adult couple, with or without children as applicable.

(c) Definition of Spouse

Spouses are ANY of the following [Reg s.1 "spouse"]:
  • two persons who self-declare as spouses to the ODSP Director (it is the practice to deem marriage as a "public" self-declaration),

  • a person required to support the applicant and/or the applicant's dependents under either:

    - a court order;

    - a domestic contract;

    - s.30 (spousal support) or 31 (child support) of the Family Law Act, regardless of any domestic contracts or other agreement purporting to waive or release such support obligation.

  • any co-resident of three months or more if:

    - "the extent of the social and familial aspects of the relationship between the two persons is consistent with cohabitation", AND

    - "the extent of the financial support provided by one person to the other or the degree of financial interdependence between the two persons is consistent with cohabitation."
When determining whether two persons are spouses - "sexual factors" are not to be investigated or considered [Reg s.1(2)].

Essentially then, a spousal relationship is formed by either marriage, self-declaration, family law duty to support - OR the less certain concept of 'spousal co-habitation'. "Co-habitation" is plainly distinct from 'co-residence' - the latter of which simply means sharing the same dwelling unit. "Co-habitation" primarily connotes elements of social, familial and financial interdependence. This is the aspect of the definition that has been much criticized and litigated (see again Appendix 4 in the welfare program: "The Concept of Spousal Dependency").

(d) Legal Responsibilities of Spouses

The legal ODSP implications of being a "spouse" in the benefit unit do not end with income and asset assessment and income support calculation.

Spouses are required to sign all consents and application forms along with the applicant [Reg s.16(1)], to sign and fulfil workfare participation agreements unless otherwise exempted (see Ch.13: "Workfare"), and to provide the same personal information as the applicant [Reg s.14]. [see Ch.6 "Information Eligibility" and Ch.10 "Applications and Procedures").

Non-compliance with these requirements may result in temporary or permanent reduction of income support in the amount allocated for that spouse (see Ch.9 "Administrator Decisions"), or in some cases in full benefit unit disentitlement [see the Rea case in Ch.11, s.2(c): "Director Decisions: Cancellation, Suspension and Reductions Decisions: Consequences of Non-Compliance".]

Applicants and spouses may also share joint liability for any past OWA, ODSP and other provincial social assistance overpayments that either of them may be responsible for while they were in the same benefit unit, resulting in deduction of overpayment amounts from the income support paid to any future benefit unit that the spouse may be involved with - even if the spouses are since separated (see Ch.11, s.3: "Director Decisions: Overpayments").

(e) Investigation Issues

As the existence of a "spousal" relationship between an applicant and any other co-residents is of great concern to ODSP Directors in terms of minimizing income support payable, the issue is one that receives much attention. This is the much-discussed "spouse in the house" issue.

As a practical matter a recipient with a co-resident adult (particularly one of the opposite sex) faces a great suspicion that the co-resident is a "spouse" - almost to the point of it being a "rebuttable presumption". This presumption is so endemic to social assistance administration culture that it effectively places the legal burden of 'disproving' (ie. proving a negative) spousal status on the applicant. To what extent this presumption will carry over into same-sex co-resident situations is yet to be seen, though residual societal discomfort with such relationships may weaken or eliminate this de facto presumption.

Advocacy groups have also objected to the historically sometimes intrusive inquiries and investigations made by social assistance authorities (ie. home visits, see Ch.6 "Information Eligibility"), feeling that women were being unfairly treated by having companionship and sexual relations presumed to involve financial interdependence. This larger issue is discussed in the welfare program at Appendix 4: "The Concept of Spousal Dependency". As a practical matter 'home visits' are now much more rarely used.


4. Dependent Adults (Dependent Adult Offspring)

(a) Overview

As noted, co-resident adult offspring can sometimes be held to be "dependent adults" . The significance of being held to be a "dependent adult" is that the person cannot collect ODSP or welfare in their own right, but only through the benefit unit of their "parents".

Note as well that the "parent/offspring" relationship extends beyond "biological" parents and includes those "who have demonstrated a settled intention to treat an offspring as part of his or her family" - except where they are doing this as a result of a fostering or children's residence contract [Reg s.1 "parent"].

If a "dependent adult" has co-resident offspring of their own (ie. the "dependent adult" is themselves a parent) then the offspring are NOT included in the ODSP benefit unit. However the parent dependent adult can apply for welfare on behalf of their such offspring (see s.6 "Dependents with Offspring", below).

A necessary criterion of being a "dependent adult" is that the person must be "financially dependent" - or in other words: NOT "financially independent" (discussed below) [Reg s.2(1)]. Note that an adult offspring living in their parents' home with their own "spouse", is by definition "financially independent" and thus no longer a "dependent adult" (see below).

(b) Financial Independence

. Full Financial Independence

Permanent or full "financial INDEPENDENCE" occurs when ANY of the following conditions are met [Reg s.2(2)]:
  • the person now resides with or at any time in the past has resided with, a "spouse" (as that term is defined above for ODSP purposes);

  • the person has at any time past or present been eligible as a sole support student under the Ontario Student Assistance Program;

  • for a cumulative (ie. add them all up) period of two years or more any or all of the following have been the case for the person:

    - they have had net income - other than child support - greater than the maximum single person ODSP rate ($536);

    - they have had their basic needs and shelter provided by some person or some entity other than their parents or an institution;

    Note: time spent where an adult offspring co-resides with parents in "shared" premises (ie. they are joint tenants WITH the parents in relation to the landlord) will count towards this.

    - they have received social income support (ODSP, ODSP or similar programs in other jurisdictions) as an recipient (not as a dependent); OR

    - they have lived apart from her or his parents since becoming an adult (ie. after their 18th birthday).

  • the person has been away from school or home-schooling, as defined in the Education Act, for five years;

  • the person has a diploma from a community college or a degree from a university or other institution;

  • the person has now, of has in past, had lawful custody of her or his child.
. Temporary Financial Independence

A person will also be considered "financially independent" for ANY MONTH in which they have:
  • assets exceeding the asset cap for a single person recipient ($536);

  • net income, excepting child support, greater than the maximum income support for a single person ($536).
This status applies regardless of the fact that the person is still not "fully" "financially independent" as determined above. For these months they will be excluded from the benefit unit for purposes of calculating income support, and the benefit unit will typically be assessed a $100 "boarder charge", which is the minimum chargeable income assessed against a benefit unit whenever a boarder resides with them - even if no "rent" is paid (see Ch.7, s.4: "Income Rules: Rent Paid to a Claimant").

. Comment

The above conditions, which prevent a person being assessed as a dependent, are quite extensive and have expanded in recent years, most recently in Reg 379/05.

These amendments - effective 01 July 2005 - (and which are integrated into the above definition) added new "financial independence" criteria (and thus additional exceptions to "dependent adult" status) for: five-year absence from school, having a diploma or degree, having or once having had lawful custody of a child, as well as additional circumstances which count toward the two-year cumulative independence period).

For persons whose status is altered by these amendments, the old rules will continue to apply to such persons until the Director re-assesses and re-determines their status [Reg s.73]. No overpayment or back-payment will be assessed retroactively for such changes, and they will only be effective at the date of the new status determination.

(c) Legal Responsibilities of Dependent Adults

Like the legal situation of "spouses", the legal responsibilities of being a dependent adult in the benefit unit do not end with income and asset assessment.

Dependent adults MAY also be required by the Director to (amongst other things):
  • sign applications, consents to third party information release and agreements to reimburse and assignments of future income [Reg s.16(2)] (see Ch. 8 "Applications and Procedures"),

  • enter into and fulfil workfare participation agreements, unless otherwise exempted (see Ch.13 "Workfare").
As well, the applicant is required to disclose a variety of personal information regarding the dependent adult to the Director [Reg s.15(2)].

Non-compliance with these requirements may result in the temporary or permanent reduction of income support in the amount allocated for the non-complying dependent (see Ch.9: "Director Decisions"), or in some cases in full benefit unit disentitlement [see the Rea case in Ch.11, s.2(c): "Director Decisions: Cancellation, Suspension and Reductions Decisions: Consequences of Non-Compliance".]

However, dependent adults are NOT subject to collection through the "notice of overpayment" provisions [Act s.16] for any "joint" overpayments paid to the benefit unit. Technically though, they MIGHT (it's arguable) be subject to court action or other legal proceedings (see Ch.11, s.3: "Director Decisions: Overpayments") for such recovery but this would be rare and there may be some common law defences to such claims.

(d) Opt-In to Dependent Adult Status

Normally, (financially) independent adult offspring who reside with their parents can receive social assistance in their own benefit unit, either under welfare or ODSP. When the offspring is eligible for ODSP it is to their financial advantage to maintain this independent status.

However when the co-resident independent adult offspring is only eligible for welfare (Ontario Works) they can chose to "opt-in" to financially dependency status [Reg s.2(2.1)], thus becoming a part of their (ODSP) parent's benefit unit. As offspring living with their parents under a separate benefit unit have their assistance rates under welfare calculated at a reduced rate (see the welfare program, Ch.3, s.12: "Basic Assistance: Living with Parents") this can sometimes be more convenient. Whether is is financially advantageous to the 'whole family' must be determined by careful comparison of the amount of social assistance provided under the two scenarios.

This is only a practical option where the parent with whom they reside is also on - or eligible for - social income support (either welfare or ODSP), for it is only in that situation that the applicant who takes the option can receive any income support as a member of the parent's benefit unit. If the parent is not eligible for welfare assistance then a "dependent adult" is categorically ineligible for income support on their own [OW Reg s.11(1)].


5. Dependent Minors

(a) Overview

Minor (persons who have not yet reached their 18th birthday) offspring who co-reside with their parents will normally be included in the parental benefit unit, and collect ODSP through that benefit unit.

The Ontario Works category of "independent minor", where a person aged 16-18 can collect assistance in their own right if they are "financially independent" (essentially the same test applied to distinguish dependent from independent adults, above) and comply with a range of education and family-reconciliation efforts, does NOT exist in ODSP law.

If a "dependent minor" has co-resident offspring of their own (ie. the "dependent minors" are themselves parents) then the offspring are NOT included in the ODSP benefit unit. However the parent dependent minor can apply for welfare (Ontario Works) on their behalf (see s.6 "Dependents with Offspring", below).

The situation of minor children in temporary care who are not dependents is covered in the welfare (Ontario Works) program at Ch.2, s.7: "Claimants: Minors in Temporary Care".

(b) Definition

"Dependent minors" are co-resident minor offspring who meet ALL of the following criteria [Reg s.2(3-3.2)]:
i. they are the offspring of the applicant/recipient and/or spouse;

ii. they co-reside with the applicant/recipient;

iii. the applicant/recipient or their spouse either:
A.
Receives or has been determined to be eligible to receive, as a shared-custody parent, the Canada Child Tax Benefit (CCTB) under s.122.61 of the Income Tax Act (Canada) on the child's behalf.

OR

B.
Has primary care and control of the child, as long as a CCTB application is pending OR the applicant/recipient is categorically ineligible for CCTB because of their immigration status [Reg s.2(3.1)];

Note:
The custody requirement of B is also satisfied where there is equal (as determined by the administrator with respect to any given month) shared physical custody - although in that case the non-shelter budgetary requirements attributable to the
child are cut in half [see Ch.5 "Income Support"] [Reg s.33.2].

However, B is NOT met where someone other than the applicant/recipient is eligible for the CCTB [Reg s.2(3.2)].
AND

iv. if the child is of school age they must either:

- be attending school or a Director-approved program,

- be unable to attend school because of mental or physical disability, OR

- be unable to attend school for reasons outside their control but will be attending at the next oppourtunity.
Failure to meet the school/program requirement condition will exclude the child from the benefit unit for income support calculation purposes.

(c) Shared Custody Dependent Minors

Of course, having a dependent minor in the benefit unit increases the amount of income support provided (see Ch.3 "Income Support") to the benefit unit. However, in shared custody situations the interesting issue of "where" the offspring is to be allocated for benefit unit purposes has in arisen in past. While this issue has been (finally) resolved by regulation changes [Reg 227/08] which are reflected in the definition of "dependent minor" (above) and in the splitting of most non-shelter budgetary requirements between the 'sharers' (essentially following the Oliveira case discussed below), a litigation history of the issue (below) is interesting. For the specific individual budgetary requirements (BR) effect of 'sharing', see your particular BR situation discussed in Ch.3.

In Ontario (COMSOC) v Laurin [1995] OJ #2904 (QL) (Div Ct) the court held that both shared custody parents would be eligible to count the same individual offspring as their "dependent child" within separate benefit units - WITHOUT "pro-rating" (splitting) the minor's component of assistance. The case was however decided under the old definition of "dependent child" in the Family Benefits Act and was not replicated under the newer OW and ODSP laws (see Oliveira, below).

A particular practical issue in such situations can be the legal requirement that a dependent minor co-habit with the applicant. Such was the case in Fournier v Ontario (COMSOC) [1998] OJ #663 (OCJGD), which - while argued on the issue of Ontario residency - was essentially a situation of shared custody. In Fournier the mother lived in Quebec and the father in Ontario - with the son splitting his time between the two residences. The court resolved the issue in favour of the father's right to increased assistance, holding that the son had two residences.

However, in Oliveira v Director (ODSP) [2008] OJ #622 (QL) (CA) shared custody resulted in the Social Benefits Tribunal (upheld later by both the Divisional Court and the Court of Appeal) ordering the 'halving' of the dependent minors' basic needs component of assistance where the mother applicant only 'had them' half of the time. Shelter and medical benefits were however maintained at 100% on basis that these costs were born fully (shelter was full because the home had to be maintained all the time). As noted above, this method of allocating budgetary requirements has been following in regulation changes implemented August 2008.


6. Dependents With Offspring

As noted, a dependent minor (s.5 above) or a dependent adult (s.4 above) within an ODSP benefit unit collects income support for themselves through their parent's (ODSP) benefit unit. Oddly, if the dependent themself has offspring of their own, social assistance for that offspring is only available through the welfare program, with the offspring being essentially a one-person (child) welfare benefit unit (see the welfare (Ontario Works) program at Ch.2, s.7 "Minors in Temporary Care".

Note that this situation does not arise with dependent adult parents who have (or ever had) a co-resident spouse, as this would render the parent "financially independent" and end the "dependent" status.


7. Lieutenant-Governor Assistance

In "exceptional circumstances" where investigation shows that it is 'advisable' to provide income support - and where presumably the applicant is not otherwise eligible for ODSP - the Lieutenant-Governor in Council (ie. the immediate staff of the provincial cabinet) may order eligibility subject to such terms as it sets out in its order [Act s.6].

Such orders are highly unusual, not appealable in the normal appeal process, and subject to only very limited "judicial review" by the courts. Anyone seeking this form of entitlement should get legal help.

Walker v Ontario (COMSOC) [1979] OJ #928 (Div Ct) was an interesting case where a single parent father made a request for Lieutenant-Governor assistance, as the Family Benefits legislation at the time only made single parent mothers eligible. In this pre-Charter case a judicial review of the original application was dismissed because the applicant was categorically ineligible. Judicial review of a concurrent L-G request for eligibility was refused as premature, the L-G not yet having ruled on the request. There are no legal guidelines or procedures established for when - and even if - the L-G must so respond. L-G requests largely leave the realm of law and enter that of politics.


8. Substitutes for "Person with a Disability" (PWD) Status

(a) General

While all ODSP recipients must meet the age, residence and financial eligibility requirements [Act s.5] discussed elsewhere in this program, some may be exempt from satisfying the medical "person with a disability" requirement by virtue of their circumstances. These circumstances are explained in more detail below, but include [Act s.3, Reg s.4]:
  • "grand-parented" Family Benefits Act (FBA) recipients;

  • Canada Pension Plan (Disabled) (CPP-D) and Quebec Pension Plan (Disabled) (QPP) recipients;

  • those 65 years or older who are not eligible for Old Age Security;

  • residents of several enumerated institutions or facilities.
(b) "Grand-Parented" FBA Recipients

As noted in Ch.1 "Overview" the precedessor program to ODSP was the Family Benefits Act or "FBA". That Act had several categories of eligibility similar to those presently under ODSP [such as "disabled" and "permanently unemployable (PUE)"] and also included single parents. Single parents were re-assigned to the (then new) Ontario Works program in June of 1998.

Except for single parents, most FBA recipients were "grand-parented" (ie. given automatic eligibility) into the (then new) ODSP program in 1998. Like the former FBA program eligibility, this grand-parented ODSP status was generally considered permanent, without the need for the periodic medical re-assessments that "normal" ODSP recipients have to go through (see Ch.14).

However, "grand-parented FBA" status can be lost (subject to one exception, below) if there is even a short break in the new ODSP eligibility [Reg 4(2)]. This can occur for any number of reasons explored throughout this program, including: moving out of the province, excess assets, failure to provide eligibility information, etc.

The exception, as it existed prior to 01 November 2006, was that re-instatement of grand-parented status was generally available if the re-application was made within 12 months of the termination of the previous ODSP eligibility, and was due to excess employment or business income. This re-instatement provision was changed 01 November 2006 to remove the 12 month time limit, making the reinstatement more broadly available to grand-parented recipients [Reg s.20].

(c) CPP and QPP-Disabled

In conjunction with its main Canada Pension Plan ("CPP") retirement pension program, the federal government has a disability pension program: CPP-D. Medical eligibility for CPP-D is considerably stricter that that for ODSP, so eligibility for CPP-Disabled is assumed as a matter of law to entail automatic eligibility for ODSP.

Similarly, Quebec administers its own pension plan separate from CPP (QPP). Eligibility for that program is accepted by Ontario as adequate medical evidence of eligibility for ODSP.

Note however that both CPP and QPP pensions are deductible from ODSP income support on a dollar-for-dollar basis (see Ch.7: "Income Rules"). Such recipients will normally receive a full CPP/QPP Disabled pension and then a smaller ODSP 'top-up' (along of course with the additional "benefits" such as drug card, etc - see Ch.4: "Benefits"). Thus net financial effect of CPP/QPP-Disabled eligibility for most existing ODSP recipients is neutral.

If a person loses their CPP/QPP-Disabled status then the ODSP eligibility induced by their CPP/QPP eligibility continues for three months after the CPP/QPP status is lost [Reg 4(3,4)]. They are of course free to re-apply for ODSP under the normal ODSP medical eligibility process.

(d) Seniors Not OAS-Eligible

Those 65 years old and older who are not eligible for the federal Old Age Security program are automatically eligible for ODSP.

(e) Institutional Residents

Residence in any of the following institutions automatically substitutes for ODSP medical eligibility (though not financial eligibility) [Act s.3(1), Reg 4(1)]:
  • all provincial psychiatric institutions (including former such facilities now merged with hospitals) listed in s.1, Reg 744/90 under the Mental Health Act: Listed Psychiatric Facilities [Reg 4(1)3.1];

  • the Centre for Addiction and Mental Health [Reg 4(1)3.2];

  • Homewood Health Centre (Guelph) [Reg 4(1)3.3];

  • facilities designated under Schedule 1 to Reg 272/90 of the Developmental Services Act "as it read immediately before February 17, 2000, who ceased to be residents of that facility on or after June 1, 1998" (typically, these are developmentally-delayed persons now living in the community in group homes)[Reg 4(1)4.2];

  • facilities established, licensed or approved by the province under the Homes for Special Care Act (typically, former residents of long-term provincial psychiatric facilities) [Reg 4(1)5], and

  • an intensive support residence or a supported group living residence, " as defined in subsection 4 (2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008" [Reg 4(1)8,9].
Income support rates for such persons are explained in Ch.3, s.8.


9. Immigration Status

An applicant is only disqualified from ODSP for immigration status if they are [Reg s.8]:
  • A tourist,

  • A visitor who has not made:

    - a refugee claim under the Immigration Act (Canada),

    - a claim for refugee protection under the Immigration and Protection Act (Canada), or

    - a permanent residence application under either Act.

  • A person under:

    - a deportation order,

    - an effective departure order,

    - an effective exclusion order under the Immigration Act (Canada),

    - an enforceable removal order under the Immigration and Refugee Protection Act (Canada),

    unless:

    - they are unable to leave the country for reasons beyond their control, or

    - have made an application for status as a permanent resident on the basis of humanitarian or compassionate considerations, as referred to in subsection 114 (2) of the Immigration Act (Canada) or subsection 25 (1) of the Immigration and Refugee Protection Act (Canada).
For income support rules applying to sponsored immigrants see Ch.3, s.6 "Income Support: Sponsored Immigrants".

A 1984 court case, Re Richardson and Metro Social Services 46 OR (2d) 63 (Div Ct), considered and rejected an argument that applicants who had not been granted landed immigrant status could not collect social assistance because they were not "resident" in Ontario. The court applied the common sense meaning of the term "resident" to mean physically residing in Ontario.


10. Prisoners

Inmates are not eligible for ODSP during the time of their residence in these penal facilities [Reg s.9]:
  • a municipal jail,

  • provincial correctional facility,

  • an open custody facility,

  • a secure custody facility,

  • a federal penitentiary,

  • a provincially or federally-funded community residence while on temporary absence, parole, probation or serving a conditional sentence.
Persons being released from institutions should also have regard to the Community Start-Up and Maintenance Allowance (CSUMA) (Ch.4 "Benefits") for financial help with obtaining housing.

For income support changes applying at the time of being placed in and released from penal facilities, see Ch.3, s.7: "Income Support: Prisoners".
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