PART C – Decision under Appeal
The decision under appeal is the reconsideration decision dated November 3, 2015 made by the
Ministry of Children and Family Development (the ministry) which determined that the appellant
received Child Care Subsidy payments to which she was not entitled because she did not meet the
citizenship requirements set out in the legislation.
PART D – Relevant Legislation
The relevant legislation is section 4 of the Child Care Subsidy Act (CCSA) and sections 1 and 5 of the
Child Care Subsidy Regulation (CCSR).
PART E – Summary of Facts
The appellant is a single mother with one child. She is in Canada on a work visa, but had a
permanent resident status application in process at all material times. She applied for the Child Care
Subsidy (CCS) on the advice of the owner-operator of her child’s daycare in July 2014. The
application form asks the applicant to indicate whether they are a Canadian citizen, a permanent
resident or a refugee. Applicants must be one of these in order to qualify for the CCS. The appellant
did not check any of these boxes. Despite this, she was approved to receive $630 per month from
July 1, 2014 to June 30, 2015. On June 25, 2015, the appellant was informed by telephone that, upon
review of her file, the ministry had determined that she did not qualify for the CCS because she did
not meet the legislated citizenship requirements. In a letter dated September 18, 2015, the ministry
informed the appellant that she was liable to repay the $6,101.00 in CCS payments that she had
received between July 2014 and April 2015.
PART F – Reasons for Panel Decision
The issue under appeal is whether the ministry’s determination that the appellant received CCS
payments to which she was not entitled between July 2014 and May 2015 because she did not meet
the legislated citizenship requirements was reasonably supported by the evidence or a reasonable
application of the legislation.
The relevant legislation is section 4 of the CCSA and sections 1 (definition of applicant) and 5 of the
CCSR.
Child care subsidies
4 Subject to the regulations, the minister may pay child care subsidies.
Definitions
1 (1) In this regulation:
"applicant" means a parent who applies under section 4 for a child care subsidy . . .
Citizenship requirements
5 An applicant is eligible for a child care subsidy only if
(a) the applicant
(i) is a Canadian citizen,
(ii) is authorized under an enactment of Canada to take up permanent residence in Canada, or
(iii) is determined under the Immigration and Refugee Protection Act (Canada) to be a Convention
refugee or a person in need of protection.
This was a written hearing. The appellant wrote in her Notice for Appeal:
I have never given false or misleading information when I applied the child subsidy. And the
ministry reviewed my application and approved it in Aug. 2014. I have been authorized to
receive the subsidy. Now they are insisting that I am not eligible because of my Canadian
citizenship status. However, since I applied the subsidy, my Canadian citizenship and my
son’s Canadian citizenship status have never changed.
The appellant’s advocate submitted a number of written arguments.
1.
As the appellant was “induced” to apply for the CCS on the advice of her son’s daycare owner-
operator, the owner-operator should be responsible for the overpayment.
2.
As the ministry processed the appellant’s incomplete application, approved her to receive the
CCS and allowed the CCS to be paid for nearly a year, this is a ministry administrative error
such that the ministry bears responsibility for the overpayment and is perhaps guilty of “gross
negligence”.
3.
The true beneficiary of the CCS payments was the appellant’s son who is a Canadian citizen
and should be able to attend daycare as any other Canadian citizen, so that this may be a
breach of his human rights.
4.
The appellant is required to pay provincial income tax and so should benefit from government
programs in the same way as others who pay the tax.
5.
The appellant’s application for permanent resident status has been accepted by the Federal
government and is “in process”.
The ministry relied on its reconsideration decision. That decision found that section 4 of the CCSA
provides that the minister may pay CCS subject to the CCSR; section 1 of the CCSR defines
“applicant” as the parent who applies for the CCS; section 5 of the CCSR requires that the applicant
be a Canadian citizen, a permanent resident or a refugee to receive the CCS; and section 7 of the
CCSA provides that if a person who is not entitled to it receives the CCS they must repay the amount
received.
The panel considered the appellant’s statement and each of the appellant’s representative’s
arguments:
1.
Determining whether the appellant was “induced” to apply for the CCS by her daycare provider
and whether this would make the daycare provider liable is beyond the jurisdiction of the panel
to determine. The panel’s jurisdiction is limited to determining whether the ministry’s decision
was reasonably supported by the evidence or was a reasonable application of the legislation.
2.
However, there are no legislative provisions dealing with administrative errors in regards to
overpayments of the CCS. Under the provisions of the legislation the appellant was not eligible
for the CCS and is liable to repay the amount received even if those payments were made as
a result of a ministry administrative error. Determining whether the ministry is guilty of “gross
negligence” is beyond the jurisdiction of the panel to determine. The panel’s jurisdiction is
limited to determining whether the ministry’s decision was reasonably supported by the
evidence or was a reasonable application of the legislation.
3.
The legislation is clear that it is the citizenship status of the applicant (parent) rather than that
of the applicant’s child that is relevant. In this case, as the appellant did not meet the
citizenship requirements, she did not qualify for the CCS. The citizenship status of her son is
not relevant. Determining whether this is a breach of the child’s human rights, or even
referring this to the Human Rights Tribunal are beyond the jurisdiction of the panel.
4.
According to the legislation, whether or not an applicant for the CCS pays income tax is not a
qualification criteria. Even if it were, the criteria not met in this case is the citizenship status
requirement, which the appellant did not meet.
5.
The legislation requires that the applicant be “authorized under an enactment of Canada to
take up permanent residence in Canada”. In other words, the applicant must be a permanent
resident at the time of the application for the CCS. The appellant was not a permanent resident
at the time of completing the CCS application and so does not meet that requirement.
In this case, it is clear that the appellant did not meet the citizenship requirements in order to qualify
for the CCS and received CCS payments to which she was not entitled.
Accordingly, the panel concludes that the ministry's decision that the appellant received CCS
payments to which she was not entitled was a reasonable application of the legislation, and confirms
the ministry’s decision.
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