Court File and Parties

CITATION: Gagnon v. Administrator, Ontario Works, Sudbury, 2018 ONSC 1079

DIVISIONAL COURT FILE NO.: 1060/17

DATE: 20180329

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GRACIE GAGNON, Appellant

-and-

ADMINISTRATOR, ONTARIO WORKS, CITY OF GREATER SUDBURY, Respondent

BEFORE: Shaw, Thorburn, and Myers JJ.

COUNSEL: Allison Woods, counsel for the Gracie Gagnon

Michel Carré, counsel for the Administrator, Ontario Works,

City of Greater Sudbury

Sabrina Fiacco, counsel for the Social Benefits Tribunal

HEARD at Sudbury: February 13, 2018

ENDORSEMENT

BY THE COURT

I. Relief Sought

[1] The Appellant, Gracie Gagnon seeks an order setting aside the decision of the Social Benefits Tribunal (the “Tribunal”) dated March 9, 2017. She also seeks a declaration that she is eligible for income support. Alternatively, she requests the Court refer the matter back for rehearing by a different panel of the Tribunal.

[2] The tribunal upheld the decision of the Administrator of the Ontario Works Program that Ms. Gagnon did not qualify for benefits under the Ontario Works Act, 1997, SO 1997, c.25, Sched. A., as amended (“OWA”) as it found that her grandmother was in the position of a “parent”. The Tribunal found that since Ms. Gagnon lives with a parent and she is not financially independent, she is not eligible for benefits under the Ontario Works Program (the “Ontario Works”).

[3] The Tribunal also found there were no special circumstances, such as a parent’s inability to provide adequate care and support that could also enable her to qualify for benefits.

II. Undisputed Facts Giving Rise to the Dispute

[4] Ms. Gagnon was born on February 1, 2000 and was, at the time of the decision, a minor. At of the time of the hearing, she had lived half of her sixteen years with her grandmother.

[5] For the first three years of her life, Ms. Gagnon lived with her parents.

[6] From 2003 until 2008, Ms. Gagnon was placed in the care and legal custody of her grandmother by the Children’s Aid Society of Sudbury (“CAS”). During that time, her grandmother received temporary care allowance benefits under the OWA, the Child Tax Benefit, and some support from Ms. Gagnon’s father.

[7] In 2008, she was returned to her biological parents. Payments for child support and other benefits provided to her grandmother ceased.

[8] In 2013, (when she was 13 years old) Ms. Gagnon’s father dropped her off at her grandmother’s house, saying he could not handle her any more. Shortly thereafter, Ms. Gagnon’s grandmother contacted the CAS and a kinship placement was put into place. Ms. Gagnon has lived with her grandmother since then.

[9] Ms. Gagnon applied for income support under the OWA. Her Application was denied on March 3, 2016. After she requested an internal review, the administrator confirmed the original decision on April 11, 2016. Ms. Gagnon appealed to the Tribunal and on May 10, 2016, the Tribunal ordered that she be provided interim assistance from May to September 2016.

[10] Thereafter, Ms. Gagnon sought an oral hearing and a decision was made on November 21, 2016 that Ms. Gagnon was not eligible for Ontario Works. She requested reconsideration.

[11] At the time of the initial decision, Ms. Gagnon was under 16 years old and was still living with her grandmother.

III. The Tribunal’s Decision

[12] The Tribunal found that Ms. Gagnon’s grandmother was a “parent” within the meaning of the OWA eligibility criteria because she was “a person who has demonstrated a settled intention to treat a child as a child of his or her family.” As such, Ms. Gagnon was ineligible for OWA benefits. The Tribunal relied on the following evidence:

a. Ms. Gagnon was not financially independent;

b. Ms. Gagnon was dependent on her grandmother for her financial and other needs;

c. Ms. Gagnon’s grandmother was acting in the role of a parent: She administered medication, was listed as next of kin on Ms. Gagnon’s benefits application, and chose the school Ms. Gagnon would attend; and

d. Ms. Gagnon wrote that “K.G. helps takes care of me 100% and makes sure my needs are fulfilled”, and she “has always mainly lived with grandma.”

[13] The Tribunal also found there were no special circumstances that could justify assistance being paid to Ms. Gagnon in her own right:

The Tribunal commends the grandmother for taking a parental role in her granddaughter’s life. She has undertaken a very important role in this child’s upbringing and it is clear that she is looking out for her granddaughter’s best well-being. The Tribunal is sympathetic to the grandmother’s financial difficulty in supporting her granddaughter however the granddaughter is not eligible for assistance as an applicant because there are no special circumstances that justify that assistance be paid to the Appellant in her own right. Her father has been providing support but that has been curtailed because of a lay off from employment. It is understood that he has resumed making some form of support payments recently. The Appellant is not financially independent and relies on the care and financial support of her grandmother. The Administrator’s decision to deny the Appellant financial assistance in her own right was a right decision.

[14] Ms. Gagnon was therefore denied benefits.

IV. The Legislative Provisions

[15] Under s. 11 (3) of O. Reg. 134/98, a person under 18 years old is not eligible for benefits under the Ontario Works Program if she lives with her “parent” and is not financially independent.

[16] Subsection 1(1) of the regulation defines a “parent,” for the purposes of Ontario Works, to include “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”

[17] Section 10 (1)(a) of the OWA allows for benefits to be paid to a person under 18 years of age in “special circumstances”. According to Ontario Works Directive, 3.5, special circumstances include parent’s inability to provide adequate care and support.

V. Jurisdiction and Standard of Review

[18] The OWA, s. 36(1) provides a statutory right of appeal to the Divisional Court on questions of law. The parties agree that this court has jurisdiction to hear an appeal on a matter of law.

[19] It is agreed that the standard of review is reasonableness, as the tribunal was interpreting provisions in its home statute. (Marano v. Director of ODSP, 2017 ONSC 1604, at para. 30; and Corrigan v. Ontario (Disability Support Program), 2016 ONSC 6212, at paras. 20-22)

[20] As such, the Tribunal’s decision is entitled to deference and will be upheld if it is within the range of outcomes that are reasonably available to the decision-maker on the evidence properly before it and provided that the decision is transparent and intelligible. (Marano v Director of ODSP, 2017 ONSC 1604, at para. 30.)

VI. Ms. Gagnon’s Position on this Appeal

[21] Ms. Gagnon appeals on the following grounds:

a. The Tribunal applied an incorrect interpretation of the definition of “parent” in the OWA; and

b. The Tribunal ignored or misapprehended the significance of important pieces of evidence.

[22] She claims that, absent these errors, she would have been entitled to benefits. She submits that,

a. Her grandmother did not fit within the definition of “parent” in subsection 1(1) of the regulation as she was not “a person who has demonstrated a settled intention to treat a child as a child of his or her family”; and

b. Her parents’ inability to care for her qualifies as “special circumstances” within the meaning of subsection 10 (1)(a) of the OWA.

VII. Analysis of the Issues and Conclusion

The Tribunal’s Finding that Ms. Gagnon’s Grandmother was a Parent for the Purpose of the Legislation

[23] In Chartier v. Chartier, 1999 707 (SCC), [1999] 1 S.C.R. 242, at para. 23, the Supreme Court of Canada stated that “it takes a properly informed and deliberate intention to assume parental obligations for support of a child, on an ongoing basis, to bring the in loco parentis status in law into being”. The assessment is viewed objectively, and the court listed a non-exhaustive list of factors to consider:

a. Whether the child participates in the extended family the same as a biological child;

b. Whether the person provides financial support (depending on ability to pay);

c. Whether the person disciplines the child as a parent;

d. Whether the person presents to the child, family, and/or work that he or she is responsible as a parent to that child; and

e. The nature or existence of the child’s relationship with the absent biological parent.

[24] In Cheng v. Cheng, 1993 CarswellOnt 4055 (Ont. Ct. (Gen. Div.)) the Court held that “a settled intention on the part of these grandparents to treat their grandchildren as their own children” included participating in a major way in the significant decisions respecting their education, upbringing or discipline.

[25] In Siddall v. Siddall, 1994 18384 (ON SC), [1994] O.J. No. 2944, at para. 49, Beaulieu J. stated that “[t]he facts of family life, the relationship between the parties, day to day care of the child and participation in parental activities are more important factors in the Court’s determination than a financial contribution… which is relevant but not a determinative factor”. Furthermore, once the settled intention has been demonstrated, the obligations do not end until there has been mutual withdrawal.

[26] Statutory language should be given its ordinary meaning as informed by the context in which it appears, and it must also be given its grammatical and ordinary meaning: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. Further, statutes are deemed to be remedial and must be given a liberal construction that ensure they attain the objective of the act, which in the social assistance context is the intention to provide support to recipients: Legislation Act, 2006, S.O. 2006, c. 21, sched. F, s. 64; Gray v. Ontario (Disability Support Program, Director) (2202), 2002 7805 (ON CA), 59 O.R. (3d) 364 (C.A.), at paras. 9-10.

[27] Legislation conferring benefits should therefore be interpreted in a broad and generous manner, with ambiguity resolved in favor of the claimant: Gray, supra, at para. 10; Rizzo, supra, at para. 36.

[28] We agree that the OWA is to be interpreted in a broad and generous manner and that any ambiguity ought to be resolved in favour of the benefit claimant if possible.

[29] There is no dispute as to the applicable legal test to determine whether the Appellant’s grandmother fits the definition of a “parent” under the regulation. The Tribunal considered a number of the factors set out by the Supreme Court of Canada in Chartier. The inquiry is factual and the outcome can be inferred from the parties’ conduct.

[30] Here, there was evidence before the administrator and the Tribunal that Ms. Gagnon lived with her grandmother for three years before the hearing. In addition, her grandmother bought her food and clothing, chose the grade schools she attended, took care of her medical needs, including administering her medicines, read her report cards, and helped her with her homework. Ms. Gagnon listed her grandmother as her “next-of-kin” on her Ontario Works application form.

[31] The Appellant wrote: “K.G. helps take care of me 100% and makes sure my needs are fulfilled.”

[32] For these reasons, the administrator and the Tribunal both found that Ms. Gagnon’s grandmother stood in the position of a parent on whom Ms. Gagnon was financially dependent under the statute. There was evidence on which the Tribunal could and did base its finding. The finding was among reasonable alternatives that were available based on the evidence that was before the Tribunal.

[33] Ms. Gagnon argues however that her grandmother never identified herself as a parent or that she had a settled intention to treat Ms. Gagnon as a member of her family. She relies in part, on the fact that her grandmother had received benefits at various times to indicate that the relationship was more akin to a foster home than a parent-child relationship.

[34] The question of whether Ms. Gagnon’s grandmother had a settled intention to treat her as a child of her family is one of fact or, at most, mixed fact and law which can be inferred from the evidence adduced. The Tribunal considered the fact that Ms. Gagnon’s grandmother not only provided for her financially but also took care of her emotion, medical and educational needs as a parent would and that she had done so for some time.

[35] It is not open to this court to re-weigh the evidence. We must defer to the findings of the Tribunal provided that there was evidence before it which could reasonably lead it to the decision it made. There was evidence before the Tribunal that could lead to the reasonable conclusion that Ms. Gagnon’s grandmother demonstrated a settled intention to treat Ms. Gagnon as a child of her family.

[36] Ms. Gagnon also argues that the tribunal failed to consider and weigh the fact that for five years (from 2008 until 2013) Ms. Gagnon lived with her biological parents. In our view, this factor does not render the Tribunal’s decision unreasonable as the relevant time for the assessment of Ms. Gagnon’s eligibility was the date of her application for benefits. Absent a palpable and overriding error, the weight to be ascribed to evidence of prior periods as indicative of the facts as at the relevant date was for the Tribunal alone to determine.

The Tribunal’s Finding that there were no Exceptional Circumstances

[37] Ms. Gagnon points to a case where the Tribunal found special circumstances existed where an appellant’s father was a heavy drinker and the atmosphere disrupted sleep and school attendance: SBT decision 0908-07170 (February 3, 2010). While irreconcilable breakdown and abuse may be indicia of special circumstances, the legislation does not requires these criteria be met for minors to be eligible for assistance: SBT decision 1502-01050 (August 13, 2015), at para. 19. Ms. Gagnon noted that in another case, the tribunal granted benefits to a child who lived in a shelter after being evicted by her parents.

[38] These examples differ from the situation in this case as there is no suggestion that Ms. Gagnon was living on her own or that her grandmother, although it was difficult, was unwilling or unable to provide for her. It was therefore reasonable for the Tribunal to conclude that the person taking care of Ms. Gagnon in the place of a parent was not unable to care for her such that there are “special circumstances” within the meaning of the legislation that should entitle her to benefits.

Conclusion

[39] As we find that the decision of the Tribunal falls within the range of reasonable outcomes that were available to it on the evidence, the appeal is dismissed. This decision relates only to benefits under the OWA. This does not mean that there are no benefits available to Ms. Gagnon or to her grandmother under different government programs or from Ms. Gagnon’s parents. However, absent special circumstances, the OWA does not provide benefits to children who live with and are financially dependent upon “parents”.

[40] We note that the Tribunal commended Ms. Gagnon’s grandmother for taking on a parental role in her granddaughter’s life and acknowledged the grandmother’s financial difficulty in supporting her granddaughter and Ms. Gagnon’s appreciation for the efforts of her grandmother. There is a common understanding that it has not been easy for Ms. Gagnon and her grandmother to meet Ms. Gagnon’s needs. We agree with these findings.

[41] We understand that for these reasons, Ms. Gagnon has been invited by counsel for the Director to seek waiver of repayment for any interim benefits she or her grandmother received in light of the difficult financial circumstances in which she and her grandmother find themselves.

[42] At the request of both parties there is no order as to costs of this proceeding.

J. Thorburn

I agree _______________________________

Shaw J.

I agree _______________________________

F.L. Myers J.

Date: March 29, 2018