CITATION: Wilcox v. Administrator, Social Services Department (Niagara), 2018 ONSC 3476
DIVISIONAL COURT FILE NO.: DC-17-839 DATE: 2018-06-04
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CONWAY, VARPIO and MYERS JJ.
BETWEEN:
Melody Wilcox Appellant
– and –
The Administrator, Social Services Department, Regional Municipality of Niagara Respondent
Silvia Dimitrova, for the Appellant Mickey Cruickshank, for the Respondent
HEARD at Hamilton: June 4, 2018
CONWAY J. (ORALLY):
[1] The appellant Melody Wilcox appeals from a decision of the Social Benefits Tribunal (the “Tribunal”) dated January 23, 2017. The Tribunal upheld the respondent Administrator's decision to deny her application for social assistance pursuant to the Ontario Works Act, 1997, c. 25, Sched. A (the “Act”).
Background
[2] The appellant is a 51 year old hearing impaired woman with mental health disabilities. She was receiving child and spousal support after separating from her husband in 2003. The support was administered by the Family Responsibility Office (“FRO”). Child support ended for the appellant's daughter Holly in January 2013 and for her daughter Jenna in December 2015.
[3] FRO mistakenly continued to pay child support for Jenna until May 2016. The appellant acknowledged that she knew the child support was supposed to end in December 2015 but she did not notify anyone and continued to use the payments to pay her rent, groceries and other expenses. In June 2016, FRO realized its error and began to garnish 100% of the appellant's spousal support payments to repay the excess child support. The garnishment ended in December 2016 and the appellant's spousal support payments resumed at that point.
[4] The appellant applied for income assistance under the Act in June 2016. Her application was denied by the Administrator, who took the position that the garnished spousal support payments were deemed to be monthly income that took her outside the eligibility requirements for social assistance.
[5] The appellant had no income for two months (June and July 2016) and had to ask her daughter to take care of her. When she appealed the Administrator's decision to the Tribunal, she requested and received interim assistance of $3500. The Tribunal dismissed her appeal and the interim assistance now has to be paid back.
[6] The appellant appeals the denial of social assistance to her for the six months from June to December 2016, as well as the requirement to repay the interim assistance.
Jurisdiction and Standard of Review
[7] The Act provides a statutory right of appeal from a decision of the Tribunal to the Divisional Court on a question of law (s. 36(1)). An error of law includes the incorrect interpretation of a statutory provision; application of the wrong legal test or principle; failure to apply a legal principle or incorrect application of a legal principle; ignoring relevant factors or relying on irrelevant factors; disregarding, misapprehending or failing to appreciate relevant evidence; or making a finding of fact on no evidence: Filipska et al v. Ministry of Community and Social Services, et al, 2017 ONSC 5462, at para. 7.
[8] The determination of the appellant's eligibility for income support and whether it meets the statutory test is a question of fact, or mixed fact and law: McKinnon v. Social Benefits Tribunal, 2012 ONSC 789, at paras. 5, 7-8.
[9] In this case, the Tribunal was interpreting its home statute. The standard of review for an error of law is reasonableness: Corrigan v. Ontario (Disability Support Program), 2016 ONSC 6212 (Div. Court), at para. 22.
Income Assistance under the Act
[10] Under s. 7 of the Act, income assistance is provided to persons who satisfy all conditions of eligibility under the Act and the regulations. The quantum and timing of that assistance is determined by the regulations (s. 16 of the Act).
[11] Section 48(1) of O. Reg. 134/98 (the “Regulation”) provides that income shall be determined for a month by adding the total amount of “all payments of any nature paid to or on behalf of or for the benefit of every member of the benefit unit...” (emphasis added). Sections 49 to 54 of the Regulation specify certain types of payments that are not included in income. Spousal support is not an excluded payment.
[12] The Administrator found, and the Tribunal agreed, that the garnished spousal support payments were “payments of any nature paid to or on behalf of or for the benefit of” the appellant, as they were reducing the debt she owed to FRO. Those payments were therefore considered income within the meaning of s. 48 of the Regulation.
Analysis
[13] The determination of whether the appellant was eligible for income assistance in this case was essentially a question of fact or mixed fact and law. However, we have considered the appellant’s submissions with respect to the Tribunal’s alleged errors of law.
[14] The appellant submits that the Tribunal erred in law by (a) failing to consider the purpose of the Act, which is benefit-conferring legislation that must be interpreted with a liberal and purposive approach; (b) misinterpreting the Act when it found that the spousal support payments were income within the meaning of s. 48, since the 100% garnishment left the appellant in financial distress and in need of income assistance; (c) read the exemptions from income in s. 52- 54 of the Regulation too narrowly; and (d) incorrectly relied on the case of Wedekind v. Ontario (Ministry of Community and Social Services), 1994 Can LII 1659 (C.A.), which was decided under different legislation.
[15] We disagree.
[16] While the Act is benefit-conferring legislation, the Tribunal noted that the language of s. 48 of the Regulation was clear and unambiguous and that income specifically includes payments made “for the benefit” of an applicant. The Tribunal observed that if a payment is considered income, the Administrator has no discretion and the payment must be taken into account in determining the applicant's eligibility for income assistance.
[17] The Tribunal further looked at the legislative intention underlying the clear language of s. 48 and noted that the legislature had specifically contemplated situations where a payment made to another entity (in this case FRO) “on behalf of” the applicant would be included in the applicant’s income, even though the applicant did not receive the payment (as was the case here).
[18] The Tribunal reviewed the sections that specifically exempted from income certain types of payments by the Ontario and federal governments and other listed entities. It determined that spousal support was not one of those listed payments.
[19] In our view, the Tribunal’s interpretation of the clear and unambiguous statutory provisions was reasonable. The Act makes it clear that whether or not an applicant receives a payment directly, it will be included in his or her income if it is made “on behalf of or for the benefit” of the applicant. In this case, the garnished spousal support payments were not made to the appellant because they were being applied to reduce her debt to FRO, which was clearly on her behalf and for her benefit. It is no different than if the spousal support payments had been made to the appellant directly and she had immediately applied them to discharge her debt to FRO.
[20] The Tribunal’s analysis is supported by the case of Wedekind, in which it was held that income tax payments made to Revenue Canada on behalf of the appellant were considered income for purposes of an equivalent section of the Family Benefits Act. The Court of Appeal found that the words “received by or on behalf of” an applicant were clear and unambiguous and that the legislature contemplated that there might be cases where payments are not made directly to the applicant but to another on behalf of the applicant. We agree with the Tribunal that those principles are equally applicable in this case.
[21] The Tribunal’s determination that the spousal support payments were not exempt from income pursuant to ss. 52-54 of the Regulation is reasonable. The legislature specifically listed exempt payments and did not include spousal support payments. There was no basis to read spousal support payments into that list.
[22] The appellant submits that the Tribunal failed to apply a “consequential analysis” and consider her evidence about how she had to survive without income for the period in question. We reject this submission. While the Tribunal was sympathetic to the appellant’s financial situation as a result of the garnished spousal support payments, it was required to give effect to the clear, unambiguous and non-discretionary wording of the Act.
[23] In our view, the Tribunal’s interpretation of the Act discloses no error of law. The appeal is dismissed.
CONWAY J. ENDORSEMENT:
[24] For oral reasons delivered in court today, the appeal is dismissed. Given the appellant’s circumstances, we exercise our discretion to award no costs.
___________________________ Conway J.
I agree
Varpio J.
I agree
Myers J.
Date of Reasons for Judgment: June 4, 2018
Date of Release: June 7, 2018
CITATION: Wilcox v. Administrator, Social Services Department (Niagara), 2018 ONSC 3476
DIVISIONAL COURT FILE NO.: DC-17-839 DATE: 2018-06-04
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CONWAY, VARPIO and MYERS JJ.
BETWEEN:
Melody Wilcox Appellant
– and –
The Administrator, Social Services Department, Regional Municipality of Niagara Respondent
ORAL REASONS FOR JUDGMENT
Conway J.
Date of Reasons for Judgment: June 4, 2018
Date of Release: June 7, 2018