COURT FILE NO.: 546/04
DATE: 20060215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MEEHAN & EPSTEIN JJ.
B E T W E E N:
DIRECTOR OF THE ONTATIO DISABILITY SUPPORT PROGRAM
Appellant
- and -
MICHELE FAVROD
Respondent
Michelle M. Schrieder, for the Appellant
Elizabeth Klassen, for the Respondent
HEARD: February 8, 2006
MEEHAN J.:
[1] This is an appeal by the Director of the Ontario Disability Support Program of a decision of the Social Benefits Tribunal determining that monthly payments made by the respondent’s father to the respondent’s mother are not income to the respondent under Ontario Regulation 222/98 (General) made under the Ontario Disability Support Program Act, S.O. 1997, c. 25, Schedule B.
[2] The respondent has a severe and permanent disability that renders her both physically and mentally disabled. She requires assistance with feeding, uses incontinent supplies and has a vocabulary of only a few words. She was born September 6, 1984, and is now an adult and had been receiving the allowance of $708 per month under the Act.
[3] The issue in this appeal is whether the Tribunal erred in law in rescinding the Director’s decision to deduct the child support her father pays to her mother, in calculating the respondent’s “income support” under the Act. The respondent was eligible under the Act to receive “income support” after she reached the age of eighteen and her father continued to pay child support pursuant to his obligations under a separation agreement. Section 37 of Regulation 222/98 under the Act provides that all income “paid to or on behalf of or for the benefit of” a recipient is to be deducted, and therefore the Director made this deduction in calculating “income support”.
[4] The respondent’s parents are separated and share responsibility for her care on an alternating basis. They entered into a domestic contract upon separation in August of 1992, which dealt with custody and access to the respondent, including her residence. Pursuant to paragraph 9.1 of the agreement the father pays $275 (now $300) each month to the mother for child support to continue until the respondent dies, the mother dies or the father dies.
[5] The Tribunal accepted the mother’s evidence that the intent of the monthly payments was to reimburse and compensate her for monies paid for assistance in caring for the respondent.
[6] In its reasons the Tribunal found that the payment by the father fell under the broad definition of income, but that on the evidence it was the mother’s income and was not paid to or on behalf of the respondent under s. 37(1) nor was it available to her under s. 37(2). Accordingly, it should not be deducted from the benefits she receives
[7] The Tribunal also commented that the benefits would not have been considered income to the respondent if her parents were living together and in the Tribunal’s view it would be unfair to treat her differently because her parents are living apart.
[8] Upon an application for reconsideration, the Vice-Chair of the Tribunal found the decision reasonable and fair and confirmed the earlier decision.
[9] There is a statutory right of appeal from a decision of the Tribunal on a question of law.
[10] The standard of review on a question of law is correctness. See: Wedekind v. Ontario (Ministry of Community and Social Services) (1994), 1994 1659 (ON CA), 21 O.R. (3d) 289.
[11] The Director takes the position that while the distinction between fact and issues of law is difficult to draw in practice, here the only issue is one of law.
[12] Since the Tribunal heard and relied upon evidence as to the intention of the mother and the father and with respect to their actions since their daughter became an adult, the question should be considered to be one of mixed fact and law.
[13] Some argument was directed towards the ability of the Tribunal to refer to the Human Rights Code – an issue we understand to be currently before the Supreme Court of Canada. In the circumstances, we make no finding on that subject except to note that the Court of Appeal Tranchemontagne v. Ontario (Director Disability Support Program) (2004) 2004 41165 (ON CA), 72 O.R. (3d) 457 appears to have indicated the Tribunal does have that jurisdiction.
[14] The question of “income” was dealt with by this Court in LeMay v. Regional Municipality of Ottawa-Carleton – Divisional Court, September 18, 1997, and the Court at pp. 7 and 8 indicated that the definition of income in s. 15(1) should be given a wide meaning, including being determined on a gross basis.
[15] The circumstances here are important in that the parents have endeavoured, through their actions and agreement, to share in the responsibilities involved in providing quality care for their daughter. It was the mother’s evidence that while the agreement refers to the monthly payments as “child support”, the funds were really to be used to assist her in meeting the exceptional needs of caring for a person with a disability. Furthermore, it provides that the support obligation ends with the death of the mother. This payment, that bears no tax consequences for the mother, has many of the characteristics of spousal support. Faced with this ambiguity, the Tribunal heard evidence from the mother upon which the appellant cross-examined. The Tribunal, upon all of the evidence, reached the conclusion that the payments were was not income to the respondent under the broad definition that captures all payments of any nature paid to or on behalf of or for the benefit unit.
[16] It is our view that since the respondent is now an adult, and the agreement itself is ambiguous with payments ending with the death of all the parties, it was open to the Tribunal to hear evidence as to the true nature of the payment. The Director chose to call no evidence.
[17] As earlier stated, the questions here are those of mixed fact and law. The findings in the absence of a legal or palpable and overriding error are entitled to deference. The circumstances of the respondent, the compensable arrangement between the father and mother and the unusual nature of the agreement were all items considered by the Tribunal and we find no palpable or overriding error in their conclusion that the monthly payments are not the respondent’s income as defined under the Act that would lead to its deduction from the monthly allowance.
[18] The agreement itself in para. 6.3 acknowledges the respondent’s disability and perhaps a more generous initial interpretation of this would have led to the Director’s consideration of the matter as set out on p. 29 of the Record:
Legal services has advised that support is to be deducted unless it is specifically identified as necessary for disability reasons. This is not mentioned in the separation agreement.
[19] The Tribunal here interpreted the document properly upon the evidence and we find no palpable or overriding error. In the specific circumstances of this case, namely the Tribunal’s findings of fact based on the mother’s evidence about the intent of the support payments and the wording of the domestic contract, there is nothing unreasonable in its decision.
[20] The appeal is dismissed. We are advised there is no issue as to costs.
MEEHAN J.
CUNNINGHAM J.
EPSTEIN J.
Released: 20060215
COURT FILE NO.: 546/04
DATE: 20060215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MEEHAN & EPSTEIN JJ.
B E T W E E N:
DIRECTOR OF THE ONTATIO DISABILITY SUPPORT PROGRAM
Appellant
- and -
MICHELE FAVROD
Respondent
JUDGMENT
MEEHAN J.
Released: February 15, 2006