"Pursuit of Resources" and Ontario Works Policy Directive 5.5 - Family Support
I'm collating and reading all the laws, regulations and policies related to Ontario Works Policy Directive 5.5 - Family Support. These documents are used by OW/ODSP Delivery Agents to enforce a "Pursuit of Resources" eligibility requirement that harms children. City of Toronto has collated these laws as well and I intend to examine how they are presented to new public assistance applicants: is there any explicit mention of "child support" on the City's web portal?
Essentially either jurisdiction (City or Province) could act to end the child support claw back from public assistance recipients. It's a matter of interpretation and application of the "best interests" test. Right now the Social Benefits Tribunal of Ontario ("SBTO") can revoke child support clawbacks (and has) but does so on a case-by-case basis. There is currently a 6 month old publication ban on SBTO decisions and this is likely related to important, rights protecting Court of Appeals decisions (Ansell, Surdivall) that are gathering steam with Tribunal Members resulting in novel decisions the government wants to keep under it's hood.
There are many players in this government system of discrimination and abuse of illegitimate kids. Any one of them could take a stand but very few do. Everyone is waiting on The Minister and The Legislature. They don't need to because we are dealing with a human rights abuse. Every person has the right not to suffer reprisal for protecting the human rights of others. A Case worker in the system can't be fired for failing to enforce the child support clawback because they recognize the family status and age rights of illegitimate kids. Social Justice requires that everyone take a stand. I do it all the time...
BEHOLD: What follows on this page are The Laws and Regulations misused by OW/ODSP Delivery Agents toward making illegitimate kids and their parents ineligible for public assistance. This systemic #familystatus discrimination MUST END.
Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A
Agreement to reimburse and assignment
13. (1) An administrator shall in prescribed circumstances, as a condition of eligibility for basic financial assistance, require an applicant, a recipient, a dependant or a prescribed person to agree to reimburse the administrator for the assistance provided or to be provided.
Same
(2) An agreement under subsection (1) may require an assignment, as prescribed.
Same
(3) This section does not apply to,
(a) a payment that would be exempt as income or assets under this Act or the regulations; or
(b) that portion of employment earnings, pension income or other prescribed income that is paid with respect to a period after the period during which the person receives assistance. 1997, c. 25, Sched. A, s. 13.
Failure to comply
14. (1) If an applicant, recipient or dependant fails to comply with or meet a condition of eligibility in this Act or the regulations, the administrator shall, as prescribed:
1. Refuse to grant assistance.
2. Declare the person ineligible for assistance for the prescribed period.
3. Reduce or cancel assistance or that part of it provided for the benefit of the person who has failed to comply.
4. Suspend assistance or suspend that part of it provided for the benefit of the person who has failed to comply.
Reinstatement
(2) If assistance is suspended, reduced or cancelled under this section, it shall be returned to its former level or reinstated only in accordance with the regulations. 1997, c. 25, Sched. A, s. 14.
No attachment, etc., of basic financial assistance
(a) is not subject to alienation or transfer by the recipient; and
(b) is not subject to garnishment, attachment, execution, seizure or receivership under any other Act.
Deduction re money owed for family support, etc.
(2) Despite subsection (1), an administrator may deduct a portion of basic financial assistance to recover,
(a) the amount of a support deduction order that is enforceable against a member of the benefit unit under section 20 of theFamily Responsibility and Support Arrears Enforcement Act, 1996; or
(b) the prescribed government debts owed by a member of the benefit unit.
Maximum amount deducted
(3) The total amount deducted from basic financial assistance under subsection (2) shall not exceed the prescribed amount unless the recipient agrees to a greater amount.
Payment of amount deducted
Application of section
(5) This section applies even if the amount has been paid into the person’s account at a financial institution. 1997, c. 25, Sched. A, s. 23.
Family support workers
59. (1) An administrator may designate persons as family support workers to assist applicants, recipients and dependants in taking whatever action is necessary to pursue financial support from persons with a legal obligation to provide it.
Same
(2) Family support workers have the prescribed powers and duties including the authority to collect and disclose personal information for purposes of assisting in legal proceedings for support and in the enforcement of agreements, orders and judgments relating to support. 1997, c. 25, Sched. A, s. 59.
Power to take affidavits
69. (1) The Director and any person or class of persons designated by the Director is, in the performance of his or her duties under this Act, a commissioner for taking affidavits within the meaning of the Commissioners for taking Affidavits Act.
Same
(2) An administrator and any person or class of persons designated by the administrator is, in the performance of his or her duties under this Act, a commissioner for taking affidavits within the meaning of the Commissioners for taking Affidavits Act. 1997, c. 25, Sched. A, s. 69.
THIS NEXT SECTION RELATES TO HOW SINGLE PARENTS ARE NOT MANDATORY PARTICPANTS IN OW. IE if there's child support to be pursued, they don't have to attend employment activities. ***VERY IMPORTANT because this part of the legislation discriminates according to FAMILY STATUS. Application Signed and Complete
20. (1) An application for basic financial assistance and all accompanying forms shall be signed by the applicant and the applicant’s spouse included in the benefit unit. O. Reg. 134/98, s. 20 (1); O. Reg. 32/00, s. 6 (1); O. Reg. 294/05, s. 7 (1).
(3) The application is not complete until,
(a) the application and all accompanying forms, agreements and consents have been completed and signed and have been provided, together with any required verification of information, to the administrator; and
(b) if required by the administrator under subsection 17 (3), the applicant, his or her spouse included in the benefit unit and his or her dependent adult have attended an employment information session. O. Reg. 377/05, s. 2.
Recovery of Overpayments and Deductions re Money Owed for Support, etc.
62. (1) For the purposes of subsections 20 (2) and 23 (3) of the Act, the prescribed amount is,
(a) 10 per cent of budgetary requirements; and
(b) 100 per cent of any arrears of basic financial assistance or income support under the Ontario Disability Support Program Act, 1997 payable to the recipient. O. Reg. 165/99, s. 14; O. Reg. 261/06, s. 11.
(2) For the purpose of subsection 23 (4) of the Act, the prescribed person is the Director of the Family Responsibility Office of the Province of Ontario or a person occupying a comparable position with a similar program in a jurisdiction with which Ontario has entered into an agreement regarding the reciprocal enforcement of support orders. O. Reg. 227/98, s. 34.
(3) If a recipient ceases to be eligible because of an increase in the value of assets, the amount recoverable under section 19 of the Act shall not exceed the difference between,
(a) the maximum value of the assets owned by the persons who were members of the benefit unit when the person was ineligible; and
(b) the maximum value of assets permitted under section 38. O. Reg. 227/98, s. 34.
Subrogation
70. (1) If a person suffers a loss as a result of a wrongful act or omission of another person and if, as a result of the loss, the person receives assistance under this Act, the Director or delivery agent is subrogated to any right of the person to recover damages or compensation for the loss.
Same
(2) A proceeding may be commenced in the name of the Director or delivery agent or in the name of the person who suffered the loss.
Same
(3) A claim under this section shall not exceed the total of,
(a) the costs incurred as a result of the loss for past assistance provided to the person;
(b) the costs likely to be incurred as a result of that loss for future assistance;
(c) the costs incurred as a result of that loss for social assistance provided under theGeneral Welfare Assistance Act, theFamily Benefits Act or the Ontario Disability Support Program Act, 1997, or assistance under the Vocational Rehabilitation Services Act by the person responsible in each case for administering that Act; and
(d) the costs incurred as a result of that loss under a prescribed statute.
Same
(4) An applicant for or recipient of assistance shall forthwith notify the Director or the delivery agent, as the case may be, of any action brought against a person to recover damages or compensation for a loss referred to in subsection (1). 1997, c. 25, Sched. A, s. 70.
O. Reg. 134/98: GENERAL
Obligation to Pursue Resources
13. (1) If the administrator is not satisfied that a member of a benefit unit is making reasonable efforts to obtain compensation or realize a financial resource or income that the person may be entitled to or eligible for, the administrator may determine that the person is not eligible for basic financial assistance or reduce the amount of basic financial assistance granted by the amount of the compensation, financial resource or income that in his or her opinion is available or would have been available had reasonable efforts been made to obtain or realize it. O. Reg. 134/98, s. 13 (1).
(2) For the purpose of subsection (1),
(a) any compensation or contribution to the support or maintenance of a member of the benefit unit that may result from an undertaking given with respect to that member under the Immigration Act(Canada) or the Immigration and Refugee Protection Act (Canada) is compensation or a financial resource to which the person is entitled;
(b) the proceeds of a loan guaranteed under section 8 of the Ministry of Training, Colleges and Universities Act or of a loan under the Canada Student Financial Assistance Act is a financial resource to which a member of a benefit unit is entitled if the member is in full-time attendance at a post-secondary institution;
(b.1) an Ontario child benefit payment under section 8.6.2 of the Income Tax Act or a payment under section 122.61 of theIncome Tax Act (Canada) is a financial resource to which the person is entitled;
(c) a retirement pension under the Canada Pension Plan or the Quebec Pension Planthat is available to a person before the month in which the person attains 65 years of age is not a financial resource to which that person is entitled; and
(d) income support under the OntarioDisability Support Program Act, 1997 that may be available to a person is not a financial resource to which that person is entitled. O. Reg. 134/98, s. 13 (2); O. Reg. 227/98, s. 5; O. Reg. 171/04, s. 3; O. Reg. 395/04, s. 3; O. Reg. 479/07, s. 1.
Agreements to Reimburse and Assignments
15. (1) If money is due and owing or may become due and owing to a member of a benefit unit that, if received, would be or would have been included as income for the purpose of calculating the income assistance payable for the benefit unit, the administrator may require, as a condition of eligibility for basic financial assistance, that the member of the benefit unit or the person authorized to act for that member agree in writing to reimburse all or any part of the assistance paid when the money becomes payable. O. Reg. 134/98, s. 15 (1).
(2) An agreement under subsection (1) may include,
(a) a requirement to reimburse assistance paid from the date of the event giving rise to the money being due and owing or becoming due and owing;
(b) an authorization and direction to the person or agency by whom the money is payable to deduct and pay the money directly to the delivery agent; and
(c) an assignment to the delivery agent of the right to be paid the money. O. Reg. 134/98, s. 15 (2).
(3) An authorization and direction and assignment made under this section is irrevocable. O. Reg. 134/98, s. 15 (3).
(4) If a person who has made an agreement under subsection (1) receives money to which the agreement applies, the person shall reimburse the delivery agent in accordance with the agreement for basic financial assistance paid since the date of the event giving rise to the money being or becoming due and owing. O. Reg. 134/98, s. 15 (4); O. Reg. 227/98, s. 7; O. Reg. 546/98, s. 2.
(5) If the amount reimbursed is attributable to a number of months, the amount reimbursed for each month shall be the lesser of,
(a) that portion of the amount received that is attributable to that month; and
(b) the amount of basic financial assistance for that month. O. Reg. 134/98, s. 15 (5).
(6) The agreement to reimburse, the authorization and direction and the assignment may be retrospective, prospective or both. O. Reg. 134/98, s. 15 (6).
(7) Subsection (1) applies with respect to income or capital but does not apply to money that would be exempt as income or assets for the purpose of determining eligibility for basic financial assistance. O. Reg. 134/98, s. 15 (7).
(8) A member of a benefit unit is not ineligible for basic financial assistance solely because a person or agency failed to deduct and remit money under an authorization and direction or an assignment made under this section, unless,
(a) the failure to deduct and remit is caused by the member of the benefit unit; or
(b) the member of the benefit unit received the money from the person or agency and failed to remit it to the administrator in accordance with the agreement. O. Reg. 134/98, s. 15 (8).
(9) For the purpose of subsection 19 (2) of the Act, the prescribed overpayment amount is the amount that would have been payable to the administrator under an agreement made under subsection (1). O. Reg. 134/98, s. 15 (9).
15.1 (1) If an applicant or recipient or a spouse included in the benefit unit has applied for income support under the Ontario Disability Support Program Act, 1997, the administrator may require, as a condition of eligibility for basic financial assistance, that the member of the benefit unit or the person authorized to act for that member agree in writing to reimburse all or any part of the assistance, if, upon final disposition of the application under the Ontario Disability Support Program Act, 1997, the applicant or recipient or the spouse is determined to be not eligible for income support under that Act. O. Reg. 614/00, s. 1; O. Reg. 294/05, s. 4.
(2) The amount of reimbursement required by an agreement referred to in subsection (1) shall be the lesser of,
(a) the financial assistance provided to the benefit unit during the months in which the asset limit set out in subsection 38 (2) was applied to the benefit unit by virtue of the application under the Ontario Disability Support Program Act, 1997; and
(b) the value of the assets for the benefit unit that was in excess of the asset limit set out in subsection 38 (1) on the day of the final disposition of the application. O. Reg. 614/00, s. 1.
(3) For the purpose of subsection 19 (2) of the Act, the prescribed overpayment amount is the amount that would have been payable to the administrator under an agreement made under subsection (1). O. Reg. 614/00, s. 1.
Recovery of Overpayments and Deductions re Money Owed for Support, etc.
62. (1) For the purposes of subsections 20 (2) and 23 (3) of the Act, the prescribed amount is,
(a) 10 per cent of budgetary requirements; and
(b) 100 per cent of any arrears of basic financial assistance or income support under the Ontario Disability Support Program Act, 1997 payable to the recipient. O. Reg. 165/99, s. 14; O. Reg. 261/06, s. 11.
(2) For the purpose of subsection 23 (4) of the Act, the prescribed person is the Director of the Family Responsibility Office of the Province of Ontario or a person occupying a comparable position with a similar program in a jurisdiction with which Ontario has entered into an agreement regarding the reciprocal enforcement of support orders. O. Reg. 227/98, s. 34 (see FACTUM OF THE INTERVENOR INCOME SECURITY ADVOCACY CENTRE)
Family Support Workers
65.1 (1) For the purposes of the Act and the regulations, a family support worker may,
(a) enter into an agreement on behalf of the delivery agent with a person who has a legal obligation to provide support to a member of the benefit unit under an agreement or a court order or judgment regarding the recovery of income assistance paid for the benefit of that member from that person;
(b) assist a member of the benefit unit or the delivery agent with legal proceedings, including variation motions and applications, with respect to support for a member of a benefit unit;
(c) undertake legal proceedings, including variation motions and applications, for support for a member of a benefit unit on behalf of the member or the delivery agent;
(d) assist a member of a benefit unit in completing an agreement providing for support of a member of a benefit unit, including a domestic contract or a paternity agreement, as defined in section 51 of theFamily Law Act, and register any such agreement with the Family Responsibility Office for enforcement;
(e) negotiate an assignment of a support order by a member of a benefit unit on behalf of the delivery agent, serve the assignment as required, register the assignment with the Family Responsibility Office for enforcement and complete supporting documentation including directions regarding payment of funds;
(f) accept service on behalf of the delivery agent with respect to proceedings respecting support of a member of a benefit unit and respond to applications to vary existing agreements or court orders or judgments with respect to support of such a member;
(g) undertake investigations and inquiries necessary to carry out his or her duties under this section; and
(h) collect, use and disclose personal information necessary to carry out his or her duties under this section, in accordance with any agreements entered into under section 71, 72 or 73 of the Act. O. Reg. 272/98, s. 10.
(2) Subsection (1) applies with necessary modifications with respect to the pursuit of resources available for the support or maintenance of a member of the benefit unit. O. Reg. 272/98, s. 10.
Family Law Act R.S.O. 1990, CHAPTER F.3
PART III
SUPPORT OBLIGATIONS
Definitions
“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30.
(3) Nothing in subsection (1) or (2) authorizes a family support worker to provide legal advice to any person. O. Reg. 272/98, s. 10.33. (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support. R.S.O. 1990, c. F.3, s. 33 (1).
Obligation of child to support parent
32. Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. R.S.O. 1990, c. F.3, s. 32.
Order for support
33. (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support. R.S.O. 1990, c. F.3, s. 33 (1).
Applicants
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent. R.S.O. 1990, c. F.3, s. 33 (2).
Same
(3) An application for an order for the support of a dependant who is the respondent’s spouse or child may also be made by one of the following agencies,
(a) the Ministry of Community and Social Services in the name of the Minister;
(b) a municipality, excluding a lower-tier municipality in a regional municipality;
(c) a district social services administration board under the District Social Services Administration Boards Act;
(d) Repealed: 2006, c. 19, Sched. B, s. 9.
(e) a delivery agent under the Ontario Works Act, 1997,
if the agency is providing or has provided a benefit under the Family Benefits Act, assistance under theGeneral Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the Ontario Disability Support Program Act, 1997 in respect of the dependant’s support, or if an application for such a benefit or assistance has been made to the agency by or on behalf of the dependant. 1997, c. 25, Sched. E, s. 1; 1999, c. 6, s. 25 (4); 2002, c. 17, Sched. F, Table; 2005, c. 5, s. 27 (8); 2006, c. 19, Sched. B, s. 9.
Assignment of support
(3) An order for support may be assigned to an agency referred to in subsection 33 (3). R.S.O. 1990, c. F.3, s. 34 (3).
Same
(3.1) An agency referred to in subsection 33 (3) to whom an order for support is assigned is entitled to the payments due under the order and has the same right to be notified of and to participate in proceedings under this Act to vary, rescind, suspend or enforce the order as the person who would otherwise be entitled to the payments. 1997, c. 20, s. 4 (1).
O. Reg. 114/99: FAMILY LAW RULES
CASES AND COURTS TO WHICH RULES APPLY
(2) These rules apply to all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice,
(a) under,
(i) the Change of Name Act,
(ii) Parts III, VI and VII of the Child andFamily Services Act,
(iii) the Children’s Law Reform Act, except sections 59 and 60,
(iv) the Divorce Act (Canada),
(v) the Family Law Act, except Part V,
(vi) the Family Responsibility and Support Arrears Enforcement Act, 1996,
(vii) sections 6 and 9 of the MarriageAct, and
(viii) the Interjurisdictional Support OrdersAct, 2002;
CASE MANAGEMENT IN THE SUPERIOR COURT OFJUSTICE
(4.1) Despite subrule (2), rule 41 (case management in the Superior Court of Justice, other than the Family Court of the Superior Court ofJustice) applies only to cases in the Superior Courtof Justice that are not in the Family Court of the Superior Court of Justice. O. Reg. 89/04, s. 1 (3).
MATTERS NOT COVERED IN RULES
(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and theAct governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1 (7).
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