DATE: 20010515

DOCKET: C34450

COURT OF APPEAL FOR ONTARIO

RE: IMAN NASSAR (Appellant) v. DIRECTOR OF INCOME MAINTENANCE BRANCH OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES (Respondent)

BEFORE: FINLAYSON, CARTHY & CHARRON JJ.A.

COUNSEL: Chris G. Paliare and Chantal Tie, for the appellant Rebecca J. Givens, for the respondent

HEARD: May 9, 2001

On appeal from the Judgment of the Divisional Court (Taramin M. Dunnet, Gloria J. Epstein and Colin L. Campbell) rendered on January 4, 2000

E N D O R S E M E N T

[1] This is an appeal from the judgment of the Divisional Court dismissing the appellant’s appeal from a decision of the Social Assistance Review Board (“S.A.R.B.”).

[2] The respondent Director had determined that the appellant was ineligible for an allowance under the Family Benefits Act, R.S.O. 1990, c. F.2 as a single parent with respect to the period from December 1993 to August 1996. Upon review of that decision, the S.A.R.B. found in favour of the appellant for part of that time period, but confirmed the Director’s finding that the appellant was ineligible to receive benefits for the period between October 1st, 1995 to July 31st, 1996 because she was residing in the same home as her spouse during such period.

[3] The different rulings with respect to the two time periods was due to a change in the legislation. Prior to October 1, 1995, s. 5(b) of R.R.O. 1990, Reg. 366 had provided that a person was not eligible for an allowance as a single person if he or she was “living with” a spouse. The phrase had been interpreted by the S.A.R.B. as requiring a consideration of the nature of the relationship between the spouses, including economic, social and familial factors, even where the spouses were legally married or the parents of a child. This interpretation was upheld by a majority decision of the Divisional Court in Ontario (Director, Income Maintenance Branch) v. Nicolitsis (1995), 1995 CanLII 11034 (ON SCDC), 126 D.L.R. (4th) 733. In a dissenting judgment, Bell J. adopted the view that the nature and quality of the relationship may be relevant for the determination of whether two persons are spouses, but not for deciding whether they are living with each other. She held rather that the words “living with” should be interpreted in accordance with their ordinary meaning, which is “sharing a dwelling place with”.

[4] It is common ground between the parties that s. 5(b) the Regulation was amended effective October 1st, 1995 by O. Reg. 409/95 following the decision in Nicolitsis, changing “living with” to “residing in the same dwelling place as” to avoid the interpretation of the majority in Nicolitsis. In the instant case, the S.A.R.B. interpreted the new provision in accordance with this amendment and focussed on the relationship between the spouse and the dwelling place rather than the relationship between the spouses. The S.A.R.B. made an extensive review of the evidence and made several adverse findings of credibility against the appellant. In the final analysis, the S.A.R.B. was satisfied “on a balance of probabilities” that “the preponderance of credible and acceptable evidence” indicated that the appellant was “residing in the same dwelling place” as her spouse within the meaning of s. 5(b) of the Regulation during the relevant time period.

[5] The appellant appealed the S.A.R.B.’s decision to the Divisional Court with respect to the finding for the period from October 1st, 1995 to July 31st, 1996, but the Director did not appeal with respect to the earlier period. The Divisional Court was satisfied that the S.A.R.B. had conducted a thorough and comprehensive review of the available evidence and saw no reason to interfere with its finding. The Court held that the finding that the spouse was “residing in the same place” as the appellant was very much a factual determination and that the S.A.R.B. had reached its conclusion taking into account both the history and context of the legislation. The Court concluded that the appellant had not met the onus upon her to satisfy the S.A.R.B. that she was not “residing in the same dwelling place as her spouse” and dismissed her appeal.

[6] The appellant raises two grounds of appeal before this court. She submits that the Divisional Court erred:

a) in finding that the onus was on the recipient on the review before the S.A.R.B. to prove her continuing eligibility for benefits; and

b) in confirming the S.A.R.B.’s interpretation and application of s. 5(b) of the Regulation.

[7] We see no reason to interfere with the Divisional Court’s decision.

[8] The S.A.R.B. must base its decision on all of the evidence presented by the parties. The usual evidential burdens apply requiring a party to adduce evidence in support of the proposition advanced by the party. However, in the ultimate result, the persuasive burden properly lies on the appellant in this case to satisfy the S.A.R.B. of her continuing eligibility for benefits under the Act. As noted by the Divisional Court, this was confirmed in Re Ellis and Ministry of Community & Social Services (1980), 1980 CanLII 1883 (ON SC), 28 O.R. (2d) 385 (Div. Ont.).

[9] In our view, this onus is consistent both with general principles in civil cases and with the scheme of the Act. Further, the respondent aptly notes that it creates no unfairness to a recipient. The facts necessary to establish eligibility are generally within the knowledge or control of the applicant rather than the Director. This is particularly so with respect to the issue of whether a recipient is residing in the same dwelling house as a spouse. The Act also contains a number of provisions that assist the recipient in knowing the case she has to meet and in presenting her submissions before the Director and the S.A.R.B.

[10] On the question of the interpretation of the words “residing in the same dwelling house” as one’s spouse and their application to the appellant’s case, we reach the same conclusion as the Divisional Court. The S.A.R.B.’s finding that the appellant was residing in the same dwelling place as her spouse was very much a factual determination and its conclusion was supported by the evidence. Under the present regulation, the parties agree and, in our view, correctly so, that the focus is on the relationship between the spouse and the dwelling place rather than between the spouses. The factors that will assist in making that factual determination will vary from case to case.

[11] In this case, we have not been persuaded that the S.A.R.B. erred in finding a sufficient nexus between the spouse and the dwelling place to conclude that the spouse was residing in the same dwelling house as the appellant within the meaning of the legislation. In particular, the S.A.R.B. was satisfied that the spouse kept and used the appellant’s dwelling place as a permanent and unchanging address in Canada for a variety of purposes. The appellant’s rebuttal of that evidence was rejected as incredible.

[12] The appeal is dismissed without costs.

(signed) “G. D. Finlayson J.A.”

(signed) “J. J. Carthy J.A.”

(signed) “Louise Charron J.A.”