HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anna Karapetsas on behalf of Elizabeth Karapetsas
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services
Respondent
DECISION
Adjudicator: Yasmeena Mohamed
Indexed as: Karapetsas v. Ontario (Community and Social Services)
APPEARANCES
Anna Karapetsas on behalf of Elizabeth Karapetsas, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services, Respondent
Mimi Singh, Counsel
Introduction
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods and services because of disability, creed, and marital status.
2The applicant alleges that her daughter, Elizabeth Karapetsas (“Elizabeth”), has been discriminated against by the operation of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched.B (“ODSPA”) and Ontario Regulation 222/8 (“Regulation”). Specifically, the applicant challenges the respondent’s inclusion of Elizabeth’s spouse’s income and assets in the calculation of her ODSP benefits and the consequent suspension thereof.
3By Case Assessment Directions (“CAD”) dated October 31, 2016, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In the CAD, the Tribunal drew the parties’ attention to two decisions with similar facts and issues, one by the Tribunal and one by the Social Benefits Tribunal: see Chamberlain v. Ontario (Community and Social Services), 2015 HRTO 31 (“Chamberlain”) and 1112-11224 (Re), 2013 ONSBT 6001 (the “SBT decision”). It sought the parties’ submissions on whether the Application has no reasonable prospect of success in light of the analysis in the two decisions.
4The summary hearing proceeded on April 28, 2017. Having heard the oral submissions by the parties and reviewed their written submissions, I dismiss this Application on the basis that it has no reasonable prospect of success. The following are my reasons.
SUMMARY OF SUBMISIONS
Applicant’s submissions
5The applicant submits that, prior to Elizabeth’s marriage, she resided with her parents, attended school and received ODSP benefits, without ODSP including her parent’s income and assets in their calculation of her ODSP benefits. Accordingly, ODSP did not consider Elizabeth’s parents as part of her benefits unit, prior to her marriage. The applicant submits that, after Elizabeth’s marriage, ODSP included her spouse’s assets in the calculation of her ODSP benefits and consequently suspended her benefits. The applicant submits that the ODSP should not include Elizabeth’s spouse’s assets in their calculation of her ODSP benefits because they did not include her parent’s income and assets prior to marriage.
6The applicant submits that under s.31 of the Family Law Act, R.S.O. 1990. c.F 3 (“FLA””), Elizabeth’s parents owed her a duty of support prior to her marriage, because she was an unmarried adult, residing in her parents’ home and attending school. After marriage, under s. 30 of the FLA, Elizabeth’s spouse owes her a duty of support. The applicant submits that, under the FLA, Elizabeth was a dependent of her parents before marriage and is now a dependent of her spouse after her marriage. The applicant submits that Elizabeth’s marriage did not change her “dependency” status and hence her ODSP benefit entitlements should not change. The applicant submits that, by including Elizabeth’s spouse’s assets in her ODSP benefits calculation, the ODSPA and Regulations draw a distinction between Elizabeth’s married status and her unmarried status and this distinction is discriminatory because the differential treatment is purely on the basis of her marriage.
7The applicant submits that it was important for Elizabeth to get married, based on her religious beliefs, and the suspension of those benefits because of her religious beliefs is discrimination on the basis of creed.
8The applicant submits that the differential treatment of Elizabeth and the suspension of her ODSP benefits after her marriage resulted in Elizabeth’s loss of financial independence that she previously enjoyed prior to her marriage, including health and transportation benefits. The applicant alleges that now Elizabeth is totally dependent on her spouse for support and this is unfair to her family unit as a whole.
9With respect to the Chamberlain case the applicant acknowledges that it dealt with the same grounds of marital status, disability and creed. However, the applicant alleges that this Application is different from the Chamberlain case for the following reasons:
a. In the Chamberlain case, the applicant’s spouses’ earnings were at issue and the ODSP benefits were suspended because the spouse’s earnings exceeded the disability eligibility amount. In this Application, Elizabeth’s spouses earning are not at issue, rather it’s his savings accrued prior to marriage. The applicant alleges that it is unfair that Elizabeth’s spouse’s savings should be a consideration by ODSP.
b. In the Chamberlain case, the applicant made a comparison between ODSP benefits for married spouses and Old Age Security Benefits. In this Application, the applicant is comparing the calculation of ODSP benefits for married persons to unmarried persons residing with their parents and attending school.
b. In the Chamberlain case, the applicant received ODSP benefits for the month in which she got married. In this Application, the applicant is claiming reimbursement of ODSP benefits that were denied to Elizabeth for the month in which she got married.
Respondent’s submissions
10The respondent submits that the applicant has claimed discrimination on the grounds of disability, marital status and creed, and the Chamberlain case has appropriately dealt with the exact same grounds. The respondent submits that this Application raises nothing new, and therefore the Application must be dismissed as having no reasonable prospect of success.
11The respondent submits that the suspension of ODSP benefits is not about the ODSP discriminating on the basis of being married. Rather it is about benefits being based on certain indicia of a relationship and whether a person becomes financially eligible when in such a relationship. Elizabeth’s marriage indicated that she was in a spousal relationship and her financial eligibility was reassessed in consideration of such a relationship.
12The respondent submits that prior to marriage Elizabeth was not considered as dependent because she was an adult, not engaged in a program of education. Prior to her marriage, Elizabeth therefore had no dependency relationship with her parents and her parents did not owe her a duty of support. Elizabeth’s parents income their income and assets were not considered to be part of Elizabeth’s benefit unit.
13The respondent submits that Elizabeth’s personal and financial situation may have changed as a result of marriage. However, it submits that this is not discriminatory because all married persons under the ODSP regime are treated the same. The eligibility for ODSP benefits rely on the principle of shared dependency because individuals and the public have a shared responsibility to support disabled individuals.
Applicants’ Reply Submissions
14The applicant submitted that, even though the respondent alleges that it had not considered Elizabeth a dependent prior to marriage, the respondent ought to have, because the respondent was aware that Elizabeth was an adult residing with her parents and attending school.
analysis and decision
Marital Status
15This hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at para. 8, the Tribunal provided the following guidance:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
16With respect to marital status, the applicant’s sole allegation is that prior to Elizabeth’s marriage, she was a dependent and notwithstanding her dependency status, she received ODSP benefits without the inclusion of her parent’s income and assets in the calculation of her ODSP benefits. The applicant alleges that after marriage, Elizabeth remained a dependent and her spouse’s income and assets, like her parents, should not have been included in the calculation of her ODSP benefits. The applicant alleges that the inclusion Elizabeth‘s spouse’s assets in her ODSP benefit unit was discriminatory because it distinguishes between Elizabeth as an unmarried dependent and Elizabeth as a married dependent.
17From the submissions of the applicant, it is clear that the applicant asserts Elizabeth was in a full-time education program prior to marriage and for that reason fell within a dependant relationship. As a consequence the applicant takes issue with the respondent’s categorization of Elizabeth as a non-dependent prior to her marriage, as compared to her categorization of being a dependent after marriage. However, the applicant has not disputed the respondent’s position that it believed she was not in an education program and for that reason did not meet the criteria for being in a dependant relationship. The applicant in essence, wants this Tribunal to determine whether the respondent’s categorization of Elizabeth as a non-dependent adult prior to her marriage was correct or incorrect. I find that this question relates to the correctness of ODSP’s categorization of Elizabeth’s non-dependency, financial and residential status prior to marriage. It is not about ODSP treating two categories of relationships they found to be dependent differently on the basis of any Code ground, nor does it relate to any differential treatment on the grounds of marriage and therefore it is not a proper question before this Tribunal.
18This Tribunal has consistently held that it does not have the power to review decisions under benefits programs to determine if they are correct under the legislation, regulations, or policies governing the program. See Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para 5, 21 and 22. This Tribunal accordingly does not have the power to review whether ODSP’s categorization of Elizabeth as a “non” dependent prior to her marriage was correct or not. Accordingly, the allegation that the inclusion of Elizabeth spouse’s income in the calculation of her ODSP benefits is discriminatory on the grounds of her marital status has no reasonable prospect of success.
19With respect to Elizabeth’s creed, the applicant alleged that it was important for Elizabeth to get married because of her religious beliefs. Similar allegations were considered by the Tribunal in Chamberlain which undertook a thorough analysis of the relevant legislation and applicable case law. The applicant sought to distinguish Chamberlain in the three ways listed in para. 9. However, none of these factual differences between this case and Chamberlain is relevant to the legal analysis of the issue.
20I adopt the analysis contained in Chamberlain, wherein the Tribunal stated at paragraph 59 of Chamberlain:
In Canadian law and culture, marriage is not just a religious or social ceremony or celebration. The partners are formally accepting a set of legal relationships, including obligations of support to one another, and have a choice whether to do so. This is not the same as the argument, rejected by the Supreme Court in A. [Quebec ( Attorney General ) v. A., 2013 SCC 5], that persons who live together without marriage are choosing not to owe each other obligations of support.
We do not accept that pressure from the family not to live together without getting married or the desire for social acceptance is equivalent to the lack of choice that may lead common law partners to live together in a committed relationship without getting married. There are many formal legal relationships and contracts that people may have reasons for and pressure to enter, but that does not negate the voluntary aspect of accepting those obligations.
21Chamberlain has confirmed that persons in a spousal unit may or may not be married and the reasons for their marriage are not a consideration. Once a person is determined under ODSP to be a “spouse”, the calculation of the benefit unit’s entitlement to receive income support is based on the assets and income of the spouses, not on whether a person is married or not or the reasons for their marriage. As a result, I find that the applicant has no reasonable prospect of establishing that her decision to marry, even if she did so for creed based reasons, resulted in any discriminatory entitlement decision under the ODSP.
Reimbursement of ODSP benefits
22The applicant claimed reimbursement of ODSP benefits for a month of Elizabeth’s marriage. This is a claim made with respect to an error in calculation of benefits. This Tribunal has no jurisdiction to deal with a decision made by ODSP and this claim is dismissed.
23The Application is dismissed because the applicant has no reasonable prospect of demonstrating that the respondent’s decision to deny her eligibility for benefits was connected to her disability, marital status or creed.
ORDER
24This Application is dismissed
Dated at Toronto, this 7th day of September, 2017.
“Signed By”
Yasmeena Mohamed
Vice-chair```