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Welfare (Ontario Works) Legal Guide
(20 June 2021)
Chapter 2 - Claimants
Subject Note
Terminology Note
- Overview
- The Benefit Unit
(a) Benefit Units
(b) Applicants
(c) Spouses
. Overview
. Preliminary Note re Same-Sex Spouses
. Definition of Spouse
. Legal Responsibilities of Spouses
. Investigation Issues
(d) Dependent Adults
Note: Re Dependent v Independent Adults
. Overview
. Legal Responsibilities of Dependent Adults
. Opt-In to Dependent Adult Status
. Other Exceptions to Dependent Adult Status
(e) Dependent Minors
- Financial Independence
(a) Overview
(b) Definition
- Minors
(a) Welfare Categorization of Minors (FLOW CHART)
(b) Dependent Minors
. Overview
. Definition
. Shared Custody Dependent Minors
(c) Independent Minors
. Overview
. "Special Circumstances" (Re family)
. Acceptable Living Arrangements
. School Attendance
. Participation Duties as Required by the Administrator
. How Allowance is Paid
. Opt-In to Dependent Minor Status
(d) Age-Ineligible Minors
(e) Policy-Ineligible Minors
- Dependents With Offspring
- Minors in Temporary Care
- Lieutenant-Governor Assistance
- Homeless Persons
- Post-Secondary Students
(a) Categorical Ineligibility
(b) Duty to Realize Financial Resources
- Immigration Status
- Prisoners
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Subject Note:
This chapter deals with the general welfare concepts of "the benefit unit", "spouses" and "dependents" - and with several unique types of claimants such as the homeless, students, immigrants and prisoners.
Other "types" of claimants such as institutional residents, person in hospitals, living with parents, shelters, etc differ primarily by their assistance amount (ie. "budgetary requirements") and are therefore discussed in Ch.3 "Assistance" Terminology Note:
The term "children" can be confusing as it has two meanings in welfare 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 assistance) and "recipient" (receiving assistance) 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.
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1. Overview
This chapter explains a key concept in understanding welfare (and ODSP) law, that of the "benefit unit".
It also addresses special categories of applicants that are defined by their personal or circumstantial characteristics: eg. immigration status, minor children (under 18 years old), homeless persons, prisoners, etc.
Some persons may have "categorical eligibility" for ODSP due to their circumstances. These include those previously on Family Benefits (FBA) due to medical disability, those eligible for CPP-Disability pensions, some institutional residents and some seniors ineligible for federal pensions (see that program, Ch.2, s.8: "Claimants: Substitutes for PWD Status").
With exceptions for residents of long-term care homes, women's shelters, hospitals, homeless shelters, and those attending residential substance abuse recovery programs (see Ch.3, s.9: "Basic Assistance: Institutional Residents) [Reg s.7], persons temporarily or permanently resident in institutions are generally ineligible for welfare and must rely on the food and shelter provided by the institution.
2. The Benefit Unit
(a) Benefit Unit
A very basic operative concept of welfare law is that of the "benefit unit". These are co-resident groups of people, grouped by welfare law into family or family-like household units for purposes of determining financial eligibility and calculating financial assistance.
The main significance of the 'benefit unit' is that - generally - the total income and assets of ALL members of the benefit unit are counted for determining financial eligibility (ie. whether income or asset maximums are exceeded). Similarly, the total size and make-up of the benefit unit is used to calculate the amount of assistance that the benefit unit will receive. In essence, the members of the benefit unit - rightly or wrongly - are legally assumed to maintain collective finances.
While persons are grouped into benefit units for purposes of determining eligibility, assistance 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 here: The Concept of Spousal Dependency.
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 of "spouse" includes same-sex relationships);
- "dependent children" (dependent minor offspring) of either the applicant or the spouse, if any;
- "dependent adults" (dependent adult offspring) of either the applicant or spouse, if any [Reg s.2(1)].
The characterization "dependent" is a legal one, not one based on the self-perception of the members of the benefit unit.
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 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) Applicants
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, although traditionally in heterosexual relationships welfare prefers the applicant/recipient to be the woman - so that if the man leaves there is no need for a re-application, just a rate adjustment.
The normal payment procedure is for cheques or direct deposits to be made payable to the applicant. However in the uncommon 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. However persons classed as either minor or adult offspring could, in the other familial and residential circumstances, be categorized as "independent" and thus be treated as "applicants" in their own single or multi-person benefit unit. Much of the discussion in the rest of this chapter explores these sometimes complex situations.
(c) Spouses
. 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 status now fully integrated into Ontario social assistance law.
In past, under the old Family Benefits Act (FBA, 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 'as such' eligibility class and the effective transfer of these recipients into the new (1997) Ontario Works regime the issue was no longer relevant to categorical eligibility, but was still highly relevant - as spouses are still "dependents" within the applicant's benefit unit. As such their assets and income are included in the total of the benefit unit's to determine collective financial eligibility for welfare assistance - and of course, assuming eligibility - the amount of assistance provided to the benefit unit.
. Preliminary Note re Same-Sex Spouses
Following on earlier Charter litigation, "same-sex partner" amendments to the OWA General Regulation in February 2000 and since have effectively brought such relationships into conventional welfare treatment.
Ontario finally regularized the legislative treatment of gay and lesbian relationships in the Spousal Relationships Statute Law Amendment Act and related OWA General Regulation changes in the summer of 2005. The elimination of the definitional requirement that spouses be "of the opposite sex" facilitated the ending of the temporary legal category of "same-sex partner", and such relationships are now directly 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 welfare without having the financial assets and income of the other counted against them for eligibility purposes (two single welfare recipients get a higher rate that a spousal couple on welfare).
The legislative changes however created a need to re-assess these situations to apply this new legal reality. To address this the amending law provided for the administrator 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.84]. In most cases this will result in a net decrease of income into the gay or lesbian household, and in many full ineligibility.
Where one partner is on ODSP, the other spouse will be re-classified as a dependent spouse of the ODSP recipient.
. Definition of Spouse
Spouses are any of the following [Reg s.1 "spouse"]:- two persons who self-declare as spouses to the welfare administrator (or the Director of ODSP) (it is a 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)]. This provision is basically a privacy provision to prevent welfare administrators from investigating or inquiring into the sexual behaviour of the applicant and their suspected spouse.
Essentially then, a spousal relationship is formed by either marriage, self-declaration, family law duty to support - OR by the less certain concept of 'spousal co-habitation'. "Co-habitation" is plainly distinct from 'co-residence' (which simply means sharing the same dwelling unit) and primarily connotes elements of social, familial and financial interdependence. For a discussion of the history and present state of the law on this issue see: The Concept of Spousal Dependency.
. Legal Responsibilities of Spouses
The legal implications of being a "spouse" in the benefit unit do not end with income and asset assessment and assistance calculation.
Spouses are required to sign all consents and application forms along with the applicant [Reg s.20(1)], to sign and fulfil workfare participation agreements unless otherwise exempted (see Ch.11 "Workfare"), and to provide the same personal information as the applicant. [see Ch.5 "Information Eligibility" and Ch.8 "Applications and Procedures").
Non-compliance with these requirements may result in the temporary or permanent reduction of assistance in the amount allocated for that spouse (see Ch.9 "Administrator Decisions").
Applicants and spouses may also share joint liability for any past OWA, ODSP and other provincial social welfare overpayments that either of them may be responsible for, resulting in deduction of overpayment amounts from the assistance paid to any future benefit unit that the spouse may be involved with - even if the spouses are since separated [Act s.21(5)].
. Investigation Issues
As the existence of a "spousal" relationship between an applicant and any other co-residence adults is of great concern to welfare administrators in terms of minimizing assistance payable, the issue is one that receives much attention. This is the much-discussed "spouse in the house" issue.
While the legal burden of proving eligibility always rests with the applicant, 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 effectively places the legal burden of 'disproving' (ie. proving a negative) spousal status on the applicant.
Advocacy groups have objected to historically intrusive inquiries and investigations made by welfare authorities (ie. home visits, see Ch.5 "Information Eligibility"), feeling that women were being unfairly treated by having companionship and sexual relations presumed to involve financial interdependence. As a practical matter 'home visits' are now much more rarely used - although in smaller municipalities where the financial outflow from welfare assistance is felt 'closer to the bone' - and where physical observation is much easier - a recipient's physical privacy may be reduced.
(d) Dependent Adults (Dependent Adult Offspring)Note: Re Dependent and Independent Adults
In welfare law, the distinction between 'dependence' and 'independence' is applied to persons [both minors (under 18) and adults] to determine whether they will be included within the parental benefit unit or not.
So if a person is classed as an 'independent adult' then, even though they live with their parent/s, they will not be part of any parental benefit unit and can receive welfare in their own right as an applicant/recipient within their own benefit unit.
On the other hand, if an adult co-residing with their parent/s is found to be a "dependent adult" then they receive welfare assistance as part of their parental benefit unit, that is if the parents are on welfare (or ODSP). However, if the parents are not on welfare or ODSP themselves, then a 'dependent adult' will not be eligible for welfare in any capacity.
Note however that independent adults who co-reside with their parents are subject to special budgetary requirement rules (see Ch.3 "Basic Assistance: Living With Parents") - unless they "elect" to be treated as "dependent adults" for the purposes of budgetary requirement calculation (see "Opt-In to Dependent Adult Status", below). Basically, such recipients receive no shelter component in their budgetary requirement calculation (only the basic needs), though they do get an additional $60 'boarder allowance'.
When a dependent adult is themselves a parent, they can collect welfare for the child only in a separate benefit unit and only for the child. The dependent adult parent must continue to collect for themselves in their original benefit unit (ie. through their parents) (see "Adult Dependents who are Sole Support Parents", below). . Overview
As noted, the significance of being held to be a "dependent adult" (dependent adult offspring) is that the person cannot collect welfare in their own right, but only through the benefit unit of their own "parents". If that benefit unit is not eligible to receive welfare, then the dependent adult will not receive any either as long as they continue to co-reside with their parents.
Note though 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"].
A necessary criterion of being a "dependent adult" is that the person must be "financially dependent" - or in other words: not "financially independent" (see s.4 "Financial Independence", below) [Reg s.2(1)]. There are several other categorical exceptions, listed below under "Other Exceptions to Dependent Adult Status".
. 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 administrator to (amongst other things):- sign applications, consents to third party information release and agreements to reimburse and assignments of future income [Reg s.20(2)] (see Ch. 8 "Applications and Procedures"),
- enter into and fulfil workfare participation agreements, unless otherwise exempted (see Ch.9 "Workfare").
As well, the applicant is required to disclose a variety of personal information regarding the dependent adult to the administrator [Reg s.17(2)].
Non-compliance with these requirements may result in the temporary or permanent reduction of assistance in the amount allocated for the non-complying dependent (see Ch.11: "Administrator Decisions").
However, dependent adults are not subject to collection through the "Notice of Overpayment" provisions [Act s.21] for any overpayments paid to the benefit unit - though technically, they might (it's arguable) be subject to court action for such recovery, but this would be rare [Act s.22] and there may be some common law defences to such claims.
. Opt-In to Dependent Adult Status
Independent adults who reside with their parents can be provided assistance in their own benefit unit. If so, they are subject to different "budgetary requirement" calculation rules (see Ch.3 "Basic Assistance: Living with Parents".
However if their parents are also on social assistance, the independent adult may elect to be treated as "financially dependent" (and thus effectively as a "dependent adult") if they so wish [Reg 44(5)]. This would mean that such persons are treated as dependents within the benefit unit of their parents, and their budgetary requirements are assessed collectively with those of their parents.
. Other Exceptions to Dependent Adult Status
There are several situations where a person is eligible for other non-welfare forms of social assistance or direct social service provision. In any of them an adult offspring will not be considered to be a "dependent adult" even though they reside with their parents and are "financially dependent". In such cases they must, if necessary, apply for social assistance in their own right. These situations are where the person [Reg s.2(1)]:- is an ODSP recipient by virtue of being found to be a "person with a disability" (this is the main ODSP eligibility route) [ODSP Act s.4];
- is a "grand-parented" former Family Benefits Act (FBA) recipients now receiving ODSP (these are persons who were eligible for FBA on 31 May 1998 [ODSP Reg s.4]. Note that any break in the continuity of the grand-parenting ends it and compels a person to re-apply fresh for ODSP under the new criteria. The applicable FBA 'grand-parenting' categories are:
- single parent or over 60 year old spouse of recipient or former recipient under FBA, as long as this status continues to date;
- permanently unemployable;
- blind or disabled;
- dependent father with dependent child;
- 65 years old and not eligible for an OAS pension;
- woman between 60 and 65 years of age single due to being unmarried, divorced, desertion, five year or more separation, death of spouse, or spouse being institutionalized for six months or more.
- was (but has since separated) a spouse of a "grand-parented" FBA recipient, and were similarly eligible for ODSP in their own right but only classed as dependent spouses for purposes of the then-spousal benefit unit;
- is a person receiving CPP Disability benefits, and for three months after the termination of such benefits.
- is a person 65 years of age or older and not eligible for a pension under the Old Age Security Act (Canada);
- is a resident in any of the following institutions [as such they are categorically-eligible for ODSP: ODSP General Reg 4(1)]:
- a mental health institution designated under s.1 of the Mental Hospitals Act: Reg.744/90 [this Regulation is repealed but persists for this purpose];
- a psychiatric facility under the Mental Health Act that was formerly a designated mental health institution as above;
- the Centre for Addiction and Mental Health ("CAMH") in the City of Toronto;
- Homewood Health Centre in the City of Guelph;
- a home for special care established, licensed or approved under the Homes for Special Care Act.
- residents of an intensive support residence or of a supported group living residence as defined in s.4(2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 [ODSP General Reg 4(1)8,9].
(e) Dependent Minors
Minors (persons who have not yet reached their 18th birthday) who co-reside with their parents may be included in the parental benefit unit (and collect welfare through that benefit unit) if they are:- "financially dependent" (see s.4 "Financial Independence", below), AND
- if they meet the other pre-conditions established for maintain this status (see s.5 "Minors", below).
3. Financial Independence
(a) Overview
Not surprisingly, "financial dependence" - a pre-condition for both adult and minor offspring being considered as "dependents" (ie. dependent adults or dependent children) - occurs when the person fails to meet the test for "financial independence".
(b) Definition
"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 for above welfare 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 welfare rate (at 31 August 2010: $585);
- 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 assistance (welfare, ODSP or similar programs in other jurisdictions) as a 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, or has in past, had lawful custody of her or his child.
Additionally, 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 (at 31 August 2010: $585);
- net income, excepting child support, greater than the maximum assistance for a single person (at 31 August 2010: $585).
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