CITATION: Oliveira v. Ontario (Disability Support Program Director), 2008 ONCA 123
DATE: 20080222
DOCKET: C46286
COURT OF APPEAL FOR ONTARIO
WEILER, ROULEAU JJ.A. and PARDU J. (ad hoc)
BETWEEN:
TINA OLIVEIRA
Appellant
and
DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM, MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES
Respondent
John Ross Done, Lesli Bisgould and Katryn Pereira for the appellant
Rebecca Givens and Daniela Bertossi for the respondent
Heard: January 30, 2008
On appeal from the order dated December 5, 2005, with reasons reported at (2005), 2005 CanLII 47706 (ON SCDC), 205 O.A.C. 356, of the Divisional Court (Justice Edward F. Then, Justice Joan L. Lax, and Justice Katherine E. Swinton).
WEILER J.A.:
OVERVIEW
[1] The appellant, Ms. Oliveira, is a person with a disability who shares joint custody of her three young children with her ex-spouse on an alternating week basis. She receives income support under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (ODSP Act).
[2] The ODSP Act is the Ontario government’s scheme for delivering social assistance to deserving applicants. Income support is calculated on a monthly basis and has three components: (1) a shelter allowance, intended for expenses such as rent, heat and hydro; (2) benefits, such as drug and dental coverage; and (3) basic needs, for expenses such as food and toiletries. The amount paid varies with the number of persons in a “benefit unit” that is, “a person and all of his or her dependants on behalf of whom the person receives or applies for income support”.
[3] The appellant’s income support for herself is not in issue in this appeal. Rather, the issue is whether she should receive 100 per cent of the basic needs component of income support for her children twelve months of the year. Ms. Oliveira is appealing a decision of the Divisional Court, which dismissed her appeal from a decision of the Social Benefits Tribunal (the Tribunal or SBT), and confirmed a reduction in the basic needs component of her income support.
[4] The Tribunal held that Ms. Oliveira was eligible for 100 per cent of the shelter component of income support for a recipient with three dependant children throughout the year. The Tribunal was of the opinion that the appellant should receive the full allowance for shelter costs because she still had to pay shelter costs when the children were in the care of her husband. The Tribunal also heard evidence that the appellant’s ex-husband did not have benefits with his employment and, to ensure that the children had appropriate medical coverage, the Tribunal ordered 100 per cent medical coverage through the ODSP twelve months of the year.
[5] In relation to the claim for basic needs, the Tribunal was required to determine whether the three children were “dependent children” and part of the mother’s “benefit unit”. The Tribunal found that the Appellant did not have sole responsibility to feed and clothe her children as well as provide for their basic necessities full time. In addition, the Tribunal noted that, pursuant to the parties’ separation agreement, all costs incurred while the children are in one parent’s care are to be borne solely by that parent. Accordingly, the Tribunal ordered that, “The Appellant is entitled to half of the children’s basic needs allowance each and every month.”
[6] The appellant appealed the Tribunal’s decision respecting the basic needs component of income support to the Divisional Court. The Director did not cross-appeal the Tribunal’s decision respecting the shelter and benefit components of income support. The Divisional Court saw no error in the Tribunal’s conclusion on the basic needs component of income support and dismissed her appeal. For the reasons that follow, I agree with the Divisional Court’s conclusion and would dismiss this appeal.
ANALYSIS
[7] The appellant’s principal position is that there is no authority in the ODSP Act or the regulations to find that a child is a “dependent” only part of the time. A child is either dependent or not and, since the children are clearly dependent on the appellant half the time, she is entitled to the full basic needs allowance on their behalf.
[8] In support of this position, the appellant relies on the decision of the Tribunal, which it suggests “implicitly” found the children to be “dependent children” twelve months of the year. By awarding a year-round shelter and benefits allowance for the appellant and her three children, the Tribunal clearly determined that the children were included in her benefit unit year-round, and were therefore her “dependent children” for the entire year. The appellant argues that this finding should have also extended to the basic needs determination. There is no residual discretion for the Director to make individualized adjustments or deductions other than the amount provided for in the regulation once determining that the children satisfied the definition of “dependent”.
[9] Alternatively, the appellant submits that, even if a child could be found to be a “dependent” fifty per cent of the time, there is no mechanism in the Act or regulations for calculating income support based on the amount of time a child is “dependent” within a one month period. In support of this position, the appellant emphasizes that the Tribunal is a creature of statute and can only act with the express authorization of its enabling statute.
[10] The determination of whether the appellant’s children are “dependent children” and part of her benefit unit is guided by Ontario Regulation 222/98 to the ODSP Act, which provides as follows:
s. 1(1) For the purposes of this Act and the regulations,
“child” means a person under 18 years of age;
“dependant”, in relation to an applicant or recipient means,
(a) a person who resides in the same dwelling place and who is,
(ii) a dependent child of the applicant or recipient….
s. 2(3) For the purposes of the Act and the regulations, a child is a dependent child, in relation to an applicant or recipient, if,
(c) the applicant or recipient or the spouse included in the benefit unit,
(i) receives the Canada Child Tax Benefit under section 122.61 of the Income Tax Act (Canada) on behalf of the child or a determination has been made under that Act that he or she is eligible to receive the Canada Child Tax Benefit, or
(ii) is the parent with primary care and control of the child, if subclause (i) does not apply;
[11] Pursuant to s. 2(3)(c)(i), whether a child is a dependant child in relation to a recipient is linked to whether the recipient receives the Canada Child Tax Benefit (CCTB) or a determination has been made under the Income Tax Act that she is eligible to receive it. The CCTB is a monthly payment provided by the federal government to financially eligible families to help with the cost of raising children under eighteen years of age. It consists of a basic benefit, and, depending on income, may include the National Child Benefit Supplement. If subsection 2(3)(c)(i) does not apply, then resort may be had to subclause (ii), and a determination is required as to whether the applicant is the parent with primary care and control of the child.
[12] The appellant receives CCTB six months of the year (January to June) and her ex-husband receives CCTB for the other six months. Therefore, for half of the year the appellant unquestionably qualifies as having dependent children under s. 2(3)(c)(i).
[13] The appellant submits that for the other half of the year, when she is not receiving the CCTB, she is still eligible to receive the CCTB in accordance with s. 2(3)(c)(i). Alternatively, it is her position that she, “is the parent with primary care and control” of the children, thereby satisfying the criteria in accordance with s. 2(3)(c)(ii).
Eligibility for CCTB throughout the year
[14] The appellant’s submission that when she is not receiving the CCTB she is nevertheless eligible to receive it is not supported by the wording of the relevant legislation. Subclause 2(3)(c)(i) refers to s. 122.61 of the Income Tax Act, which, in turn, defines “eligible individual” under s. 122.6. The relevant portion of the definition of an “eligible individual” is as follows:
“eligible individual” in respect of a qualified dependant at any time means a person who at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who primarily fulfills the responsibility for the care and upbringing of the qualified dependant, [Emphasis added.]
[15] The appellant shares custody with her spouse on an alternating week basis. Therefore, it cannot be said that she primarily fulfills “the responsibility for the care and upbringing” of the children. Rather, as noted by the Tribunal, the appellant “had primary care and control of the children 50% of the time”. In addition, faced with the equal care and control situation, the Canada Revenue Agency made a determination that the appellant and her ex-husband were eligible to receive the CCTB for only half of the year. A parent, such as the appellant, who asserts that she in fact has primary responsibility for the care of children does have a right to challenge the CCRA conclusion of equal parental responsibility and if successful, would then be eligible to receive the CCTB throughout the year. I would therefore reject the appellant’s submission that she meets the requirements of s. 2(3)(c)(i) on a year round basis.
“Primary care and control” of the children
[16] The appellant submits that the Tribunal held she is a parent with primary care and control of her children at least fifty per cent of the time in any month when she was not in receipt of the CCTB, and that this suffices for the purposes of the section. The Tribunal found:
Having considered all of the evidence the Tribunal determines that the Appellant is not the only parent with primary care and control of the children for any given month during which she is not entitled to the Child Tax Benefit as primary care and control is also assumed by the children’s father every other week.
[17] This argument presumes that eligibility under s. 3(c)(ii) can be resorted to notwithstanding the fact that CCTB has been determined and allocated between the parents under s. 3(c)(i). This interpretation does not appear to accord with the plain wording of s. 3(c)(ii) which states that that subsection only applies “if subclause (i) does not apply”. However, we will nevertheless assume subclause (ii) applies and deal with the argument on its merits.
[18] The term “primary care and control” is not defined in the ODSP Act or its regulations. Principles of statutory interpretation must be applied to determine its true meaning. The prevailing approach to statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” See R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) at p. 1; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26. The ordinary meaning of legislation is “the natural meaning which appears when the provision is simply read through”. See Sullivan, supra, at p. 21; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724 at 735.
[19] The natural meaning of the phrase, “the parent with primary care and control” requires a determination of which of the parents has the primary care and control in a given month. This interpretation is derived from the use of the definite article the, as opposed to the indefinite article a, coupled with the word primary. My interpretation is supported by the equally authoritative French version which speaks of a determination as to whether the father or mother is the parent with primary care and control.
[20] The tribunal was therefore faced with the same issue as Revenue Canada in that a 50-50 sharing of custody was not contemplated by the regulation.
[21] Words take their meaning from the context in which they are found. Thus, in interpreting a statutory provision, among the considerations to which the court will have regard are the way in which the Act operates, its purpose, history and other external sources. See Sullivan, supra, at pp. 261-62.
[22] The purposes of the ODSP Act are set out in s. 1. They include the recognition that persons with disabilities who have dependants need to be effectively served. The Tribunal recognized that the appellant would not be served effectively if shelter costs for her children were met only part of the year because she had to pay for shelter for them twelve months of the year. Her shelter cost was constant. By contrast, food is a variable cost. Variation of the full allowance would not therefore violate the purpose of effective service to the appellant. The purposes of the Act also include accountability to the taxpayers of Ontario; reducing variable costs also fulfills this objective.
[23] Furthermore, administrative bodies empowered to decide questions of law “may presumptively go beyond the bounds of their enabling statute and decide issues of common law or statutory interpretation that arise in the course of a case properly before them, subject to judicial review on the appropriate standard”. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R 513 at para. 24, per Bastarache J., upholding this court’s decision on the issue of whether the Tribunal had jurisdiction to consider the Ontario Human Rights Code, R.S.O. 1990 c. H.19. Bastarache J. noted at para. 26, “[t]he presumption that a tribunal can go beyond its enabling statute … exists because it is undesirable for a tribunal to limit itself to some of the law while shutting its eyes to the rest of the law.”
[24] In addition, Bastarache J. held at para. 40 that, in deciding a question of law, such as whether an applicant is eligible for income support, “the SBT is presumed able to consider any legal source that might influence its decision on eligibility.” Thus, when an enabling statute is silent on an issue, a tribunal may look beyond its enabling statute to other legal sources. Other legal sources would include the common law. In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 at para. 54 of its reasons, the Supreme Court cited Professor Rogerson to the effect that the majority of child-related costs, such as housing, were fixed and that any savings would typically be with respect to the smaller category of variable expenses such as food. These comments apply equally to joint custody. The category of expenditures to which the basic needs portion of income support relates are variable costs such as food.
[25] In situations where a recipient of income support is a co-resident, is incarcerated or in hospital, the amount of income support paid is proportionately reduced. See O.Reg. 222/98, ss. 17, 35, 36. Thus, the intention of the legislation is to account for the realities of a given situation. The appellant submits, however, that the prescribed deductions are the only ones permitted by the Act and Regulation, and the Tribunal had no choice but to order payment of 100 per cent of basic needs throughout the year.
[26] I disagree with this view. Where the legislation in question does not expressly confer a power, gaps in legislation may be filled when doing so is necessary to the operation of the legislative scheme: Sullivan, supra, pp.137-38. For example, in Pointe-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, the Labour Court had to make a decision that a person was or was not an employee in order for the legislative scheme to operate. A person was sent by an employment agency to work temporarily for the City. The union submitted she was an employee of the City for the purposes of s. 39 of Quebec’s Labour Code. The Code defined an “employee” as “a person who works for an employer and for remuneration”. The Supreme Court upheld the Labour Court’s decision that the woman was an employee of the City because her work was directed by the City, even though she was paid by the employment agency. Lamer C.J. wrote at para. 62:
I am aware that the arrangement is not perfect. However, it must not be forgotten that the relationship in question here is not a traditional bipartite relationship but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer. In such a situation, it is natural that labour legislation designed to govern bipartite situations must be adjusted in some ways.
[27] So too, here, the relationship in question is not a traditional one in which one parent has sole custody of the children, but one in which the parents share the attributes of custody equally. In such a situation, it is natural that the legislation governing benefits must be adjusted.
[28] In Pointe-Claire, Lamer C.J. further commented at para. 63:
Unfortunately, tribunals and courts must often make decisions by interpreting statutes in which there are gaps.… When faced with such legislative gaps, tribunals have used their expertise to interpret the often terse provisions of the statute. In the final analysis, however, it is up to the legislature to remedy those gaps. The Court cannot encroach on an area where it does not belong.
[29] Similarly, in this case, the Tribunal had to make a decision as to eligibility for the legislative scheme to operate. The Tribunal acted with flexibility and fairness to ensure that the appellant’s economic reality and particular circumstances were properly taken into account in determining her eligibility.
[30] The Act and Regulation contain no mechanism for calculating income support on anything other than a monthly basis. The same result would, however, be achieved by paying the full basic needs component to the appellant when she is in receipt of the CCTB for six months and nothing afterwards when she is not incurring this variable cost and is not eligible for CCTB. Providing half of basic needs to the appellant throughout the year makes her income more consistent and does not affect the overall result.
[31] The wording of s. 2(3) does not specifically envisage the increasingly popular option of joint custody. In such circumstances, I am of the opinion that the Tribunal had jurisdiction to make the order it did and, indeed, the respondent supports this interpretation. After analyzing the legislation, I conclude that there is a basis for the Tribunal’s decision to order payment of fifty per cent of the amount of the basic needs component of income support in the Act and the Regulation, and the Tribunal’s conclusion does not constitute an error of law.
[32] In the alternative the appellant submits that the Tribunal’s finding that she has primary care and control of the children fifty per cent of the time and not more “ignores the evidence” and thus is an error in law. The appellant’s submission that she has primary care and control of the children more than fifty per cent of the time is based on her evidence that during the weeks when the children are residing with their father she still takes them to recreational activities and doctor’s appointments.
[33] I disagree with this alternative submission. The Tribunal referred to the appellant’s evidence and did not ignore it. The Tribunal chose, however, to rely on the wording of the parties’ separation agreement. On an appeal on a pure question of law, the task of the court is not to second guess the weight accorded by the Tribunal to various pieces of evidence. See Pitters v. Ontario (Criminal Injuries Compensation Board) (1996), 95 O.A.C. 325 (Div. Ct.).
Application of the Ontario Human Rights Code
[34] Finally, the appellant submits that the Tribunal’s decision violates the Ontario Human Rights Code, because it discriminates against her on the basis of “family status”. The appellant submits that she receives unequal treatment “because of” her family status since it flows directly from the custody arrangements she has with her ex-husband. She argues that her poverty is exacerbated by this arrangement and the Tribunal’s interpretation is a disincentive to enter into a custodial arrangement that is in the best interests of her children.
[35] The respondent points out that the appellant did not raise the Ontario Human Rights Code before the Tribunal and, consequently, no evidence was led or argument addressed to this issue. While this Court maintains the discretion to consider arguments not raised in the processes below, I am not certain that such is appropriate in this context, where the respondent did not have a fair opportunity to defend the legislation by presenting oral and documentary evidence on it before the Tribunal.
[36] In any event, in arguing that she is being treated unequally on the basis of family status, the appellant appears to be comparing herself to parents with sole custody whose circumstances are different than parents with joint custody. Parents with sole custody have the children with them the full month or the majority of the month, rather than half the month. This distinction is significant. To suggest that these two distinct groups should receive the same treatment is inappropriate. While a parent with joint custody must maintain a residence for the children all of the time, and therefore practical equality requires that the parent receive the full shelter component, the same is not true for basic needs. Half of the child’s basic needs would arise while with each parent, therefore, paying half of the basic needs produces an equal result in comparison with children who are not in equally split joint custody arrangements. As such, I would reject the appellant’s submission that the Tribunal’s decision violates the Ontario Human Rights Code.
RESULT
[37] For the reasons given, I would dismiss the appellant’s appeal. No costs are sought and none are awarded.
“K.M. Weiler J.A.”
“I agree Paul Rouleau J.A.”
“I agree G. Pardu J. (ad hoc)”
RELEASED: February 22, 2008