COURT FILE NO.: 73170/04
DATE: 20060310
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DURNO R.S.J., ASTON AND WILSON JJ.
Appeal under ss. 31(1) of the Ontario Disability Support Program Act, S.O. 1997, Chapter 25 and Schedule B and s. 70(3) of the Ontario Regulations 222/98, as amended.
B E T W E E N:
TOM DOWSWELL
Appellant
- and -
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Respondent
Jo-Anne M. Boulding, for the Appellant
Michelle M. Schrieder, for the Respondent
HEARD at Newmarket: March 9, 2006
WILSON J.
[1] This is an appeal of the decision of the Social Benefits Tribunal (“Tribunal”), dated September 17, 2004.
[2] The appellant Tom Dowswell was granted disability benefits in August 2001, upon a review of an initial decision denying benefits. The benefits were payable retroactively effective June 2000 to August 2001(the Retroactive Benefits). The appellant separated from his wife in July 2001. The benefit has been paid directly to Mr. Dowswell since August, 2001.
[3] The issue in this appeal is whether the Tribunal was correct in determining that the Retroactive Benefits were properly payable to the appellant’s ex-wife, as she was the head of the “benefit unit” until the parties separated.
[4] The appellant Tom Dowswell argues that the Tribunal erred in its interpretation of s. 3(2) of the Ontario Disability Support Program, 1997, S.O. 1997, c. 25, Sched. B. (“ODSPA”), and erred in its interpretation and use of the definition of “benefit unit” under s.2.
[5] He requests that this court set aside the decision of the Tribunal and issue an order that he is entitled to payment of the Retroactive Benefits. Alternatively, the appellant requests that the matter be sent back for a rehearing by a different panel with directions. The respondents request that the court dismiss this appeal.
COURT’S JURISDICTION
[6] A decision of the tribunal may be appealed to the Divisional Court on a question of law as provided in s. 31(1) of the Ontario Disability Support Program, 1997, S.O. 1997, c. 25 Sched. B.
STANDARD OF REVIEW
[7] The appellant and respondent agree that the standard of review is correctness for an appeal on a question of law under the ODSPA. This test is confirmed by the Ontario Court of Appeal in Gray v. Ontario (Disability Support Program)(2002) 2002 7805 (ON CA), 59 O.R. (3d) 364, O.J. No. 1531 (C.A.).
BACKGROUND FACTS
[8] In May 2000, Mr. Dowswell applied for the benefits. His application was initially denied. He appealed, and was successful in August 2001 in obtaining an order for the Retroactive Benefits.
[9] Under the ODSPA program, recipients and their dependants are assessed for eligibility, and receive income support, as one benefit unit. Mrs. Dowswell had been receiving a benefit since 1985. The appellant was always her dependant and thus a member of her “benefit unit”. Prior to separation, the ODSPA payment was made in Mrs. Dowswell’s name and directly deposited into the joint bank account of the spouses. The “benefit unit” consisted of both of the Dowswells, as their children were independent.
[10] During the period of the Retroactive Benefits that are in dispute, the appellant was residing with his wife, and the Dowswells’ received an allowance from ODSPA.
[11] The decision of the Tribunal that is before this court is the third step in a three-step review process.
• First, on October 15, 2001, the Director made the Decision to vary Mr. Dowswell’s income support by paying the Retroactive Benefits to his spouse.
• Second, Mr. Dowswell appealed the decision of the Director. A hearing was held on July 11, 2002 and a decision rendered on April 17, 2003 upholding the Director’s order to pay the Retroactive Benefits to the appellant’s wife.
• Third, a reconsideration hearing was granted, which consisted of a hearing de nova. In written reasons dated September 17, 2004, the Tribunal upheld the variation order of the Director. It is the correctness of this third decision that is before this court.
[12] The ODSPA does not specify when a retroactive benefit must be paid if the parties separate.
THE STATUTORY PROVISIONS
[13] The appellant asserts that the Tribunal did not have authority to make the order as the director was required to make the payment to the person with a disability as outlined in section 3(1) of the ODSPA.
[14] The respondent asserts that the Tribunal did not err in its interpretation and application of s. 3(2) in its finding that the definition of “benefit unit” overrules s. 3(1), and in its interpretation of the ODSPA.
[15] The following are the relevant statutory provisions including the definitions that are in issue:
1 (1) for the purpose of the Act and the regulations,
“dependant”, in relation to an applicant or recipient, means:
(a) a person who resides in the same dwelling place and who is;
(1) the spouse or the same sex partner of the applicant or recipient
- In this Act,
“applicant” means a person who applies for income support or on whose behalf such an application is made ( “auteur de demande”)
“benefit unit” means a person and all of his or her dependants on behalf of whom the person receives or applies for income support; (“groupe de prestataires”)
“recipient” means a person to whom income support is provided; (“beneficiare”)
Who receives income support
- Income support shall be provided to a person with a disability, as determined under section 4, and to a person of a prescribed class. 1997, c. 25, Sched. B, s. 3 (1).
Who are the beneficiaries
- Income support shall be provided for the benefit of the eligible person and his or her dependants. 1997, c. 25, Sched. B, s. 3 (2).
THE TRIBUNAL DECISION
[16] The Tribunal upheld the director’s order to pay the retroactive income support to Mrs. Dowswell. The following is the excerpt from the Tribunal’s decision confirming the 3(1) of the ODSPA must be read in conjunction with section 3(2) and the concept of a single “benefit unit” in the dwelling:
The appellant’s representative has pointed to subsection 3(1) of the Act that states that income support shall be provided to a person with a disability. However, subsection 3(2) goes on to state that income support shall be provided for the benefit of the eligible person and his or her dependants. Budgetary requirements are calculated in s. 30 to 33 of the Regulation and the amount payable depends on the number of persons in the benefit unit. There is only one situation where there is distinct amount of income support payable to one person and that is where the person has no spouse or other dependants. Otherwise the amount of income support includes an amount for the spouse or partner and dependants.
The Tribunal finds that while the determination that the appellant in this case was a person with disability was made after the appellant moved from the benefit unit. He was a member of that unit up until July 2001. Prior to his departure there was one recipient, the spouse, and the appellant was the dependant. She was receiving income support on his behalf in accordance with the calculations in s. 30 to 33. The basic needs portion and the shelter costs were determined on the basis of all the persons in the benefit unit. Once it is determined that not only the recipient but also her spouse (the appellant) was a person with a disability, the amount paid to the benefit unit would increase in accordance with the Table in s. 30 and 31. The Table of basic needs is an additional amount but continues to be paid to the original recipient and it only changes if a recipient and his or her partner notify the Director.
The appellant remained a member of the benefit unit until July 2001. The increase in income support that resulted from him being determined to be a person with a disability was to cover the basic needs and shelter of the recipient and him while they resided together. Even if paid retroactively, it was to compensate for what were considered the needs of the benefit unit. Only when the appellant left the spouse did he become a “single person” under the legislation and then entitled to receive an amount just for his needs. This is because he was the only member of another benefit unit now, one without any dependants.
CONCLUSIONS
[17] We agree with the respondent’s interpretation of the interplay between the relevant sections of the ODSPA
[18] When the appellant was found to be a person with a disability he was not entitled to income support in his own right while he and Mrs. Dowswell were cohabiting, because he was already a member of a benefit unit. It was the benefit unit that was entitled to an increase in income support. Payment of the Retroactive Benefits to Mrs. Dowswell does not determine entitlement. The payment was for the benefit of both parties as members of the benefit unit.
[19] However, from a practical point of view, we have concerns about the approach taken by the Director, upheld by the Tribunal. The Director’s decision has inevitably given rise to this dispute between the parties, and extensive, costly administrative and court proceedings.
[20] The powers of the Director with respect to benefits are outlined in section 38 of the ODSPA as follows:
Director’s powers and duties
- The Director shall,
a) Receive applications for income support;
b) Determine the eligibility of each applicant for income support;
c) If an applicant is found eligible for income support, determine the amount of the income support and direct its provision;
d) Administer the provisions of this Act and the regulations;
e) Determine how the payment of the costs of administering this Act and providing income support is to be allocated;
f) Ensure that the appropriate payments are made or witheld, as the case may be, and
g) Exercise the prescirbed powers and duties. 1997, c. 25, Sched. B, s. 38
[21] It is clear that the beneficiaries of the Retroactive Benefits are both to appellant and his ex-spouse, as they were, both members of the “benefit unit”. Section 3 (2) clearly states the income support is provided “for the benefit of the eligible person and his or her dependents”. (emphasis added)
[22] The Director knew that the parties were separated when entitlement to the Retroactive Benefits was finally determined. It cannot be a correct interpretation in law to provide a windfall to Mrs. Dowswell for Mr. Dowswell’s disability benefit.
[23] The Director has powers pursuant to section 38 (d) and (j) to administer the provisions of the ODSPA and to insure that appropriate payments are made.
[24] In the facts of this case, we are of the view that the Director should have taken reasonable steps to ensure that both parties received an equal share of the Retroactive Benefits.
[25] We therefore order the Director to pay to the appellant one half of the Retroactive Benefits.
DURNO J.
ASTON J.
WILSON J.
Released: March 10, 2006
COURT FILE NO.: 73170/04
DATE: 20060310
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DURNO R.S.J., ASTON and WILSON JJ.
B E T W E E N:
Tom Dowswell
Appellant
and
Director of the Ontario Disability Support Program of the Ministry of Community and Social Services
Respondent
REASONS FOR JUDGMENT
Durno R.S.J., Aston and Wilson JJ.
Released: March 10, 2006