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Return to First Part of Chapter
4. Minors
(a) Welfare Categorization of Minors
As noted above, "minors" are persons who have not yet reached their 18th birthdays. Correct categorization and treatment of minor children in welfare law can be complex. It is further complicated by the fact that minors themselves can have offspring.
Below is a question-and-answer "flow chart" to determine the welfare status of any minor person, and their dependent offspring:- Does minor live with parents?
If YES, go to 2.
If NO, go to 3.
- Does the minor meet the test for "financial independence" as outlined in section 4 above?
If YES, go to 4.
If NO, go to 3.
- Does minor meet the test for "dependent minor" as outlined in subsection 5(b) below?
If YES, they are a dependent minor, and collect welfare as a dependent within their parents' benefit unit. This status is explained in s.5(b).
Go to 6.
If NO, they are a policy-ineligible minor, unable to collect welfare for themselves or any dependents. This status is explained in s.5(e) below.
- Does minor meet the test for "independent minor" set out in s.5(c) below?
If YES, go to 5.
If NO, they are a policy-ineligible minor, unable to collect welfare for themselves or any dependents. This status is explained in s.5(e) below.
- Has the minor reached their 16th birthday yet?
If YES, they are an independent minor [see subsection 5(c) below] and can apply for welfare in their own right as an "applicant".
Go to 7.
If NO, they are an age-ineligible minor, unable to collect welfare for themselves in any capacity by virtue of their age. This status is explained in s.5(d) below.
Go to 7.
- Does the minor have offspring of their own?
If YES, go to 7.
If NO, then the minor's welfare status is as determined by the previous step.
- Is the minor a "sole-support" parent (ie. without a spouse)?
If YES, then the minor may collect welfare for that offspring - whatever their personal eligibility status as determined by the previous step. (see "Dependents and Independent Minors Who are Sole Support Parents", below)
If NO, then both the minor and spouse are "financially independent" (by virtue of having spouses: [Reg s.2(2)]).
Go to 4.
The situation of minor children in temporary care who are not dependents is covered in s.7 "Minor Children in Temporary Care", below.
Confused yet? I'm still not sure if I am or not.
(b) Dependent Minors
. Overview
Dependent minors are included in the benefit unit of their parents, and cannot collect welfare in their own right as "applicants".
However if they have offspring of their own they may collect welfare for those offspring but only in a separate benefit unit [Reg s.11(2)]. Practically this situation will only arise where the dependent minor is a sole-support parent as otherwise they would qualify as "financially independent" by virtue of having a spouse. In any event, the budgetary requirements for the offspring are determined by special rules (see Ch.3 "Basic Assistance: Sole-Support Dependent and Independent Minor Parents").
. Definition
"Dependent minors" are minors who fail the test for "financial independence" (see s.4, above) and who meet all of the following criteria [Reg s.2(3)]:- they are the offspring of the applicant/recipient and/or spouse;
- they co-reside with the applicant/recipient;
Note:Children who are temporarily absent from the benefit unit's home due to the result of children's aid society involvement are still dependent: Reg 1(1) "dependent". - the applicant/recipient or their spouse either:
A.
Receives or has been determined to be eligible to receive on the child's behalf the payment under s.122.61 of the Income Tax Act (Canada), either as a full or as a shared-custody parent;
OR
B.
Has primary care and control of the child, as long as a such an application is pending OR the applicant/recipient is categorically ineligible for the payment because of their immigration status;
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 [Reg s.2(3.1)]. However, where someone other than the applicant/recipient is eligible for the payment under 122.61 of the Income Tax Act, B is NOT met [Reg s.2(3.2)].
AND
C.
If the minor is 16 or older and has offspring of their own, the minor parent if required by the administrator, must participate in an approved program of activities that will assist with completion of a high school diploma, development of employment skills, and development of parenting skills.
Failure to meet these conditions will not necessarily allow the minor to apply for assistance as an "independent adult" but may simply exclude them from the benefit unit for assistance calculation purposes. In the case of the school participation requirements, this is meant to be punitive.
As well, "independent minors" who reside with their parents (discussed below) may elect to be treated as "dependent minors" for the purposes of budgetary requirement calculation (see "Opt-In to Dependent Minor Status", below).
. Shared Custody Dependent Minors
Of course, having a dependent minor in the benefit unit increases the amount of assistance provided (see Ch.3 "Basic Assistance") 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 226/08] 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 has not yet been replicated under the newer OW and ODSP laws (see Oliveira, below).
A particular practical issue in such situations is the legal requirement that a dependent minor co-habit with the applicant, limiting such 'doubling-up' to situations where the offspring live with both parents in a very integrated way. 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 the 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.
(c) Independent Minors
. Overview
"Independent minors" may apply for welfare in their own right as "applicants" - regardless of whether they co-reside with their parents.
Similarly, if they have offspring of their own they may collect welfare for those offspring [Reg s.11(4)]. However, where the minor is a sole-support parent (ie. without a "spouse" as defined in welfare law) then the budgetary requirements for the offspring are determined by special rules (see Ch.3 "Basic Assistance: Sole-Support Dependent and Independent Minor Parents").
In order to achieve and maintain the status of an "independent minor" they must be "financially independent" (see s.4 above) and meet the following status and participation requirements (each discussed below in turn) [Reg s.10]:
- "special circumstances" (Re family);
- acceptable living arrangements;
- participation duties as required by the administrator.
. "Special Circumstances" (Re family)
The meaning of this requirement is not spelled out in law but has been left to be defined by discretionary policies. Policy Directive 3.5 has set out the following four factors to be considered when assessing whether "special circumstances" exist to justify allowing the minor to apply for welfare in their own right as an "applicant":
- physical, emotional or sexual abuse at home;
- irreconcilable differences and clearly demonstrated withdrawal of parental support;
- parents' inability to provide adequate care and support to applicant;
- no familial home or financial support available through no fault of the applicant.
These factors clearly reflect a government policy to compel minors back to the support of their parents whenever possible. The law further authorizes the administrator to assess "the circumstances of the person's family" in order to determine whether special circumstances exist [Reg s.10(2)].
While the Policy Directives have specified the considerations that go into deciding the "special circumstances" requirement, care should be taken not to accept these as "law". Remember - policy is only the administrator's perspective on what should go into this determination. The law itself is silent on what considerations go into the meaning of "special circumstances". This can create ambiguity - and it is a principal of statutory interpretation that whenever ambiguity occurs in 'benefits-conferring legislation' that it must be resolved in favour of the benefit claimant: Rizzo v Rizzo Shoes Ltd [1998] 1 SCR 27.
. Acceptable Living Arrangements
The minor's living arrangements should be "conducive to meeting the conditions of eligibility regarding education or training, employment and community participation".
This effectively provides the welfare administrator with a veto over the minor's accommodation arrangements. It will likely be interpreted as requiring stable, supervised accommodation either in a quasi-institutional or community housing program, or in a relative's home.
. Participation Duties as Required by the Administrator
If the administrator requires, the minor may also be required to do one or more the following [Reg s.10(7)]:
- participate in counselling with their parent or parents, should the parent or parents be willing;
- maintain contact with a responsible adult or agency that has agreed to encourage the child to maintain living arrangements that are conducive to meeting the conditions for eligibility under this section, and to notify the administrator when it appears that the person's living arrangements are not conducive to meeting conditions of eligibility,
- if the minor has dependent offspring of their own, participate in programs assisting with completion of high school, the development of employment-related skills, and/or the development of parenting skills.
. How Allowance is Paid
Those eligible for welfare as an independent minor applicant will not receive the assistance money directly. It will be paid to their guardian of property or trustee - or if none exists then to an appointed welfare trustee [Reg s.10(8), Act s.17(2)]. Welfare trustees are further discussed in Chapter 8 "Applications and Procedures: How Welfare is Paid".
. Opt-In to Dependent Minor Status
Independent minors who reside with their parents are provided assistance in their own benefit unit. As well, they are subject to different "budgetary requirement" calculation rules (see Ch.3 "Basic Assistance: Living with Parents".
However the independebt minor may elect to be treated as "financially dependent" (and thus effectively as a "dependent minors") if they so wish [Reg 44(5)]. This would mean that such persons are treated as dependents within the benefit unit of their parents.
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 if the parent is not eligible for social assistance then a "dependent minor" is categorically ineligible for assistance on their own [Reg s.11(3)], and the parents must continue to provide for them.
(d) Age-Ineligible Minors
Minor less than 16 years old cannot collect welfare for themselves as "applicants" [Reg s.10(9)] - though they can "collect" assistance as "dependent minors" through their parents' benefit unit.
However minors under 16 who are "financially independent", have offspring of their own AND who are "sole-support parents" (ie. without a spouse) can collect welfare for their offspring only (see "Dependents and Independent Minors Who are Sole Support Parents", below) [Reg s.11(4)].
Often situations of minor parents will involve the custody of Children's Aid Society and/or foster parents (see s.7, below).
(e) Policy-Ineligible Minors
These are minors who either:
- reside with their parents but have failed to meet the eligibility requirements of a "dependent minor" [s.5(b) above], or
- do not reside with parents but have failed to meet the eligibility requirements of an "independent minor" [s.5(c) above]
Such persons are completely ineligible for receive welfare either directly as their own "applicants" or indirectly through their parents' benefit unit. Further they cannot collect welfare on behalf of their own children (see "Dependents and Independent Minors Who are Sole Support Parents", below).
These minors are essentially being punished for failing to abide by the social policies inherent in current welfare law that attempt to compel them back to their parent's home and support where practical, and in any event to compel them back to school and "acceptable" living arrangements. In some cases they are "forced" back to their parents - and in others they fall back into any number of random circumstances, few of them positive or healthy. As a class they can accurately be characterized as "high-risk" youth.
5. Dependents With Offspring
A dependent minor [(s.5(b) above] or a dependent adult [s.2(d) above] who has offspring of their own may collect welfare but only for the offspring [Reg s.11(2)].
Practically, such cases are invariably ones of sole-support (ie. no spouse) parenting as having a spouse would render the minor parent "financially independent" and end the "dependent" status.
In any event, where the minor is a sole-support parent (ie. without a "spouse" as defined in welfare law) then the budgetary requirements for the offspring are determined by special rules (see Ch.3 "Basic Assistance: Sole-Support Dependent and Independent Minor Parents").
An Ineligible Minor (see the "Flow Chart" above) with offspring may not collect welfare either for themselves or for their offspring. Where such a minor is in financial need, their child will probably be apprehended by the Children's Aid Society (CAS).
6. Minors in Temporary Care
Welfare may be paid to an adult on behalf of a minor in temporary care if all of the following conditions are met [Act s.10; Reg s.57]:
- the minor is in the "temporary care" of an adult, which means that:
- the minor is to reside for a short term with the care-giving adult,
- the minor is expected to return to their parent at the earliest oppourtunity, and
- that there is no other parent or person with a legal obligation to care for the minor who is able to do so;
- the care-giving adult otherwise has no legal obligation to support the minor;
- the minor is in "financial need", which means that their "budgetary requirements" exceed income (see Ch.3 "Assistance: Minors in Temporary Care") and 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];
- the minor is not a dependent within any other welfare or ODSP benefit unit;
- the minor is not receiving residential care from someone who is compensated for such care under the Child, Youth and Family Services Act (CAS-arranged foster parents).
A "legal obligation to support" the minor includes duties under the Family Law Act, the Divorce Act (Canada) or similar laws in other jurisdictions.
As a condition of eligibility, the administrator may require that the care-giver enter into an "agreement to reimburse" the administrator from any monies which become or may become due and owing to the minor in temporary care (typically, child support). Such agreements may include signed "authorizations or directions" to third parties to pay such monies directly to welfare, and "assignments" of such monies directly to welfare [Reg s.15] (see Ch.5 "Information Eligibility" regarding fuller details of such duties.)
Note however that there is no welfare duty on the care-giver to directly pursue such debts owing to the minor.
See Ch.3 "Basic Assistance: Minors in Temporary Care" for the assistance provided to (ie. budgetary requirements of) such applicants.
7. Lieutenant-Governor Assistance
In "exceptional circumstances" where investigation shows that it is 'advisable' to provide assistance - and where presumably the applicant is not otherwise eligible for welfare - the Lieutenant-Governor in Council (in practice, the immediate staff of the provincial cabinet) may order eligibility subject to such terms as it sets out in its order [Act s.11].
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 you 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 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. Homeless Persons
Homeless persons tend to have frequently changing residence status, ranging from "living rough" (ie. outside overnight), temporary overnight stays at shelters, and periodically "crashing" with friends and family.
For administration and budgetary requirements purposes, homeless persons staying at shelters for any length of time are dealt with through the shelter (see Ch.3 "Basic Assistance: Homeless Recipients").
Persons living rough may apply for welfare and will be processed at any local welfare office [Reg s.4]. Technically they have the full entitlement of other applicants under the main "renter/shelter" budgetary requirements category (see Ch.3 "Basic Assistance"), but by practice they are not allowed any "shelter" component - under the Catch-22 logic that they do not have any "shelter" expense.
Persons in this situation who can arrange a "promise of address" may be able to avail themselves of the "Community Start-Up and Maintenance Allowance" (CSUMA) to get some money for first and last month's rent [see Ch.4, s.2(e): Benefits: Non-Discretionary Benefits: CSUMA]. If and when regular accomodation is established then the shelter component will kick in.
Persons temporarily staying with friends or family are typically treated like those "living rough" if there is no rent paid. However welfare, for administrative convenience, will tend to try to categorize such a person as resident in that home - temporary though it may be.
For the assistance rates and budgetary requirements of homeless persons see Ch.3 "Basic Assistance: Homeless Recipients".
Note that ODSP recipients who find themselves homeless still retain normal ODSP eligibility under normal rules, with adjustments due to change in shelter expenses (see the ODSP program: Ch.3.s.8: "Income Support: Institutional Residents").
9. Post-Secondary Students
(a) Categorical Ineligibility
Single (ie. non-spousal) full-time students of post-secondary schools (eg. community colleges and universities) are ineligiblr for welfare if they are receiving either an OSAP or a Canada Student loan, or if they are not eligible for such a loan due to parental income or past default in payment of such loans [Reg s.9].
(b) Duty to Realize Financial Resources
Further - particularly relevant where the student has a spouse and thus falls outside of the categorical exclusion in (a) above - it is a general duty of welfare law that the applicant must make "reasonable efforts to obtain compensation or realize a financial resource or income that the person may be entitled to or eligible for" [Reg s.13].
The welfare General Regulation specifically states that:s.13(2)(b)
... the proceeds of a loan guaranteed under section 8 of the Ministry of Training, Colleges and Universities Act or of a loan under the Canada Student Financial Assistance Act IS [emphasis added] is a financial resource to which a member of a benefit unit is entitled if the member is in full-time attendance at a post-secondary institution; Therefore such a student (ie. full-time post-secondary) will be financially penalized for failing to seek out and realize their student loan eligibility (see Ch.7 "Assets" and Ch.9 "Administrator Decisions").
Note however that the specificity of the loans and circumstances identified in the wording of s.13(2)(b) above (ie. loans, full-time school, s.8 MTCU loans) provides a strong legal argument that loans or grants NOT falling within the strict application of that section (eg. part-time school, grants and bursaries) are excluded from this 'duty to realize'.
Of course, where categorical ineligibility does NOT apply (ie. student with spouse, part-time school, grants or bursaries, etc) the problem still exists of the income and asset treatment of education-related income. These issues are dealt with under the topics of loans and student loans in Ch.6 "Income Rules" and Ch.7 "Asset Rules").
10. Immigration Status
An applicant is only disqualified from welfare for immigration status if they are any of the following [Reg s.6]:
- 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 assistance rules applying to sponsored immigrants see Ch.3 "Basic Assistance: 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 welfare assistance because they were not "resident" in Ontario (see Ch.1 "Overview"). The court applied the common sense meaning of the term "resident" to mean physically residing in Ontario.
11. Prisoners
Inmates are not eligible for welfare during the time of their residence in these penal facilities [Reg s.8]:
- a municipal jail,
- provincial correctional facility,
- an open custody facility,
- a secure custody facility,
- a federal penitentiary,
- is on temporary absence, parole or probation or serving a conditional sentence and is residing in a community residence if the person’s placement is funded in whole or in part by Correctional Service Canada.
For assistance changes applying at the time of being placed in and released from penal facilities, see Ch.3 "Basic Assistance: Prisoners". |
