Ministry of Education and Child Care

Part C – Decision Under Appeal

Appeal # 2022-0074

The decision under appeal is the Ministry of Children and Family Development (the ministry) reconsideration decision dated March 31, 2022 which found that for the period March 1, 2016 and April 30, 2016 the appellant was eligible for Child Care Subsidy (CCS) for both children in the amount of $635.00 each, totalling $2,540 for the two months because one parent was employed and the other parent had a medical condition that interferes with that parent’s ability to care for the child.

However, the ministry determined that the appellant was not eligible for CCS amounts from May 1, 2016 to August 31, 2016 because of the increase in the family’s net income considering the appellant’s spouse’s income. As a result the appellant received an overpayment of $4,740.00.

Part D – Relevant Legislation

Child Care Subsidy Act (CCSA) sections 5, and 7 Child Care Subsidy Regulation (CCSR) sections 1(1), 3, 7, 8, 9, 10, 14 and Schedule A

EAAT003 (17/08/21)2

Part E – Summary of Facts

Appeal # 2022-0074

From ministry files: - On August 21, 2015 the appellant submitted a Child Care Subsidy Application to the Child Care Subsidy Service Centre (CCSSC), indicating she was a single parent. She advised she had full custody and received no child support. On October 17, 2015 she was found eligible for subsidy and issued a Benefit Plan for her two children as a 1 parent, 3 unit family, beginning September 1, 2015 until August 31, 2016. The panel notes that while the appellant stated she had full custody the social workers notes of November 18, 2017 indicate that the appellant has started the process of applying for full custody.

- On August 5, 2016, in a telephone conversation with the CCSSC regarding the renewal of the benefit the appellant reported that her spouse had returned to live with the family in March 2016 and has been working since May 2016. The CCSSC advised her to contact the ministry with any updates of her circumstances sooner, as this will affect her subsidy and has resulted in amounts of CCS being overpaid. - On August 8, 2016, the CCSSC received the appellant’s CCS application for the renewal of her benefit. She indicated she was a 2 parent household and her spouse was given consent on the file. For the assessment of her eligibility the appellant provided paystub information and ID for her spouse. Based on the following information she was assessed for subsidy as a 2 parent, 4 unit family: • She was employed for $14/hour for 8 Hours/Day, 5 Days/Week, since: September 14, 2015. Her schedule was Monday – Friday from 8:30 AM to 4:30 PM. She was paid bi-weekly with an average monthly pay of $1,936.23. (Avg. Pay x 26/12) • The appellant’s spouse was employed from May 1, 2016 to August 24, 2016 for $31/hour, 7 days on / 7 days off, 12 hours/day, 5 days/week. He was paid bi-weekly with an average pay of $4,619.71 per month. (Avg. Pay x 26/12) • The total monthly income was assessed as $6,555.94.

- A ministry Office Note dated August 5, 2016 states: “Clt stated that spouse returned to live with family in Mar2016 and has been working [for company A] since May2015 [sic] ... Reviewed on 2016Aug05 2 parent, unit 4 ... Spo employed at [company A] ... since 2016May01 ...”

- On November 7, 2016, the appellant reported that she and her spouse had separated effective November 1, 2016 and were no longer living together.

- A ministry Office Note dated November 7, 2016 indicates that the appellant’s children’s daycare centre was a licensed Child Care Setting “Lic # [xxxxxxxxxx]”

- On November 17, 2021, the Verification and Audit Unit completed a review of the appellant’s file and determined that the appellant had received a Child Care Subsidy overpayment of $7280 that she is liable to repay. A recalculation by the Verification and Audit Officer found that, due to no Reason for Care for the appellant’s spouse from March 1, 2016 to April 30, 2016, and an increased family income due to the consideration of his income from May 1, 2016 to August 31, 2016, the appellant was ineligible for the full amount of subsidy that she received for the period between March 1, 2016 to August 31, 2016. The appellant advised the Verification and Audit Officer that she and her ex-spouse had an on and off relationship and that there was social worker involvement. The appellant also stated that her ex-spouse was in a treatment facility for substance abuse during part of this period. Ministry records confirm that he was in the care of the treatment facility from January 14, 2019 to February 28, 2019 which is not the period in question.

EAAT003 (17/08/21)3

Appeal # 2022-0074

Additional Documents - A Child Care Subsidy Application form dated August 5, 2016, signed by the appellant and her spouse. When prompted to declare “Marriage or Marriage-like Relationship Status” the appellant selected • “Married, or living in a marriage-like relationship”. The start date of the appellant’s spouse’s employment is identified as May 20, 2016.

- A Vital Statistics report indicates that the appellant and her former spouse are the biological parents of a child born in 2013 and a child born in 2014.

- Ministry of Health records indicate that between March 1, 2016 and August 31, 2016 the appellant and her spouse had the same address.

- School records for both children dated September 9, 2019 indicate the appellant as the mother and her ex-spouse as the father, with both parents listing the same address and identical home phone numbers.

- Care provider registration records completed and signed on September 26, 2018 and January 14, 2019, for both children list the appellant’s ex-spouse as a parent/guardian. Additional registration forms completed on September 4, 2019 for both children for the same facility do not include the ex-spouse as a parent/guardian.

- 2 Ministry of Children and Family Development (MCFD) Incident Reports provided by the social worker office involved with the appellant’s case confirm that • the appellant and her former spouse have been separated from October 2016 to July 2017 due to ongoing alcohol and substance abuse; • the former spouse was placed on a no contact order with the appellant, effective November 8, 2017; • they had an on and off relationship prior to the social worker's involvement, which began following a police incident of assault on November 18, 2017 • social worker involvement ended on May 14, 2018, at which point the appellant and her former spouse were not living together with no plans to do so • a follow-up memo added on July 16, 2018 indicated that the former spouse is currently living with the appellant’s parents and remains on the no contact order.

- Appellant’s Pay Stubs September 6 - September 19, 2015 Cheque amount $ 462.95 (for 1 week of work) September 20 - October 3, 2015 Cheque amount $ 919.49 June 26 - July 9, 2016 Cheque amount $ 919.73 July 10 - July 23 , 2016 Cheque amount $ 867.56

- Ex-spouses Pay Stubs July 3 - July 16, 2016 Net Pay $ 2128.12 July 17 - July 30, 2016 Net Pay $ 2136.23

- Child Care Payments from March 1 to August 31, 2016 paid monthly to the licensed daycare centre For child 1: 6 times $ 635 = $ 3810 For child 2: 2 times $ 635 (for March and April) plus 4 times $ 550 (for May to August) = $ 3470 Total: $ 7280

EAAT003 (17/08/21)4

Appeal # 2022-0074

- Child Care Subsidy Overpayment Calculation for March - August 2016, dated November 17, 2021 Overpayment Reason “Spousal Status” Total Overpayment Amount $ 7280 . With her Request for Reconsideration dated March 16, 2022 the appellant provided the following documentation:

- In letter dated February 22, 202 the appellant writes that • she was in need of CCS because her children’s father was unreliable to care for the children due to his alcohol and cocaine addictions; • their relationship was always on and off; • he would leave at any given moment to drink and do drugs and leave for days without contact; • she could not afford child care on her income; • she needed the security of having child care but could not afford it on her income; • he couldn’t keep a job due to his addiction; • she was paying all the household expenses • before she had child care he would refuse to watch the children when he was at home

- The appellant’s ex-spouse writes in a statement dated March 2022: • “I was [an] unfit parent/spouse and abandoned my family to drink and do drugs. • I was not a parent capable of or in a condition of caring for my children, • in and out of their lives due to my addictions.”

- The appellant’s counsellor writes in a letter dated January 17, 2022: • They have been working with the appellant since March 2018; • The appellant “was involved in a long-term common-law relationship with a partner who struggled with drug and alcohol addiction... • The extent of his ongoing addiction is such that it prevents him from contributing to [the appellant and her children] financially....; • When he does earn some money , it is quickly lost to his addiction before any contribution is made to [the appellant or the children] • Before [the appellant and her former partner separated there were many years of mental, emotional, and financial struggles...”

- In a letter dated January 18, 2022 the author writes that • the appellant was the main caregiver of her 2 children. • Her [former spouse] had addictions and was not dependable to look after the children. • The daycare was the safe place for the children.

- A family member writes in a letter dated January 21, 2021 [sic] • The appellant and her ex-spouse were “previously in a marital relationship” and have not been “in a marital relationship...as far back as 2015. • [She] still allows for [him] to have parental access to the children however they are not in a conjugal relationship. • [He] has been suffering from addiction issues for the last 4-5 years...”

- The appellant’s mother wrote in a letter dated January 16, 2022: • The appellant’s ex-spouse was in and out of her daughter’s and their children’s life.

EAAT003 (17/08/21)5

•

• •

•

Appeal # 2022-0074 He has never been supportive “to his family” o ther than picking up the children from school or daycare periodically while the appellant was at work.

The appellant “did her best to support him as he tried treatment/counselling for his addictions”. Having to pay back a substantial sum will provide stress for the appellant who is a single parent with no financial support from her [ex-spouse]; as it is she struggles to pay her rent, utilities, food, clothes, maintaining/upkeep of her vehicle which is a necessity. Having to pay back this amount is also not in the best interest of the children who will have to give up sports and other activities.

- The appellant’s bank statements show financial information for the period beginning March 31, 2016 and ending with August 31, 2016.

In her Notice of Appeal dated April 11, 2022 the appellant wrote: “I was living in an abusive situation. Financial Abuse, Physical Abuse, Verbal Abuse, Emotional Abuse. He controlled the finances. I felt unsafe, my children needed protection.”

The ministry did not attend the hearing. Upon confirming that the ministry was notified the hearing proceeded in accordance with section 86(b) of the Employment and Assistance Regulation. The panel regrets the ministry’s absence as there was no opportunity to get more information or clarification from the ministry. The appellant’s advocate stated they were here to take notes and would not actively participate at the hearing. The advocate was off-screen during the hearing except during introductions.

At the hearing the appellant retold much of the information she had already given at reconsideration. She spoke of her ex-spouse not being reliable because of his addictions. Once they had to move out of their apartment because of this. She was basically a single mom. She had to always pay rent, bills like hydro and cable, top up CCS. He lied about paying the rent and hydro and once the hydro got cut off. She just had her second child and needed to work. At some point she owed money to the daycare. “He does not help with anything.” If he works the family sees nothing of his income. He said he couldn’t give money to the family because he owed money. She never knew how much money he earned. He did not tell her if he was working but she would find out from his sister. He lied about the money when he worked. Sometimes he had a job. He worked a lot out of town but never came home with money. Whenever he had money he “took off”. There were times when he gave her money and then he asked for money back. He was never responsible financially. Her mother has helped financially.

He was argumentative, not a good father and not a good person. He moved out 3-4 times a year and went to living with his mother or was couch-surfing. He often “took off” to party with his friends and came back the next day or stayed away for days. When he was supposed to look after their children he would leave them alone instead of watching them; she could not rely on him caring for her children. All her family was working - they could not help with child care. The safest place for their children was the daycare.

They ate together when he was home. He gave some money for groceries. Sometimes he paid, sometimes she did. He gave maximum $500, and he also gave money to his parents.

Once they had a joint account around 2014/2015 but he cleaned it out and she had to close it and open her own account when they separated. They have separate bank accounts now. She has only 1 bank account in which her employment income is deposited. He has his own bank account and uses his money as he sees fit.

She could not break free from this relationship. She did not have the mental capacity to end it. It was better having him come and go than not having him at all. She tried to help him and allowed him to come

EAAT003 (17/08/21)6

Appeal # 2022-0074 whenever he needed her. She knows now she should have left him but she wanted her kids to have a father. Only in the beginning their relationship was okay when the children were small. Maybe he was a good father in their first years. At the time they separated they were not emotionally together.

She knows the rules - she knows she has to report it when he is living with her. Admissibility of New Information In the Notice of Appeal and at the hearing the appellant provided more details about her relationship with the father of her children The panel finds that this information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal, as it contributes to the panel’s understanding of this relationship - it is part of their story. The panel therefore admits this information as evidence pursuant to section 22(4) of the Employment and Assistance Act.

EAAT003 (17/08/21)7

Part F – Reasons for Panel Decision

Appeal # 2022-0074

The issue in this appeal is whether the ministry decision that the appellant received an overpayment of $4,740.00 because she was not eligible for Child Care Subsidy (CCS) from May 1, 2016 to August 31, 2016 is reasonably supported by the evidence or a reasonable application of the legislation in the appellant’s circumstances.

Legislation: The Child Care Subsidy (CCS) Act Section 7(1) sets out that if a child care subsidy is paid to or for a person who is not entitled to it, that person is liable to repay to the government the amount to which the person was not entitled.

The CCS Regulation Section 1(1) defines “spouse”, in relation to a parent, as anyone who (a) is married to the parent, or (b) is living with the parent in a marriage-like relationship;

The CCS Regulation Section 7 sets out that an applicant is not eligible for a child care subsidy if the family's monthly net income exceeds the child's income threshold, and the result of the calculation under Section 8(2) for the child is not more than zero.

Appellant’s Position The appellant argues that she should be eligible for the subsidy because her relationship with the father of her children was a very difficult on and off relationship; she had to shoulder all family responsibilities like a single mother.

She reports that her partner was not reliable and would leave home at any given moment to drink and do drugs. He often “took off” to party with his friends. He left for days without contact. He moved out 3-4 times a year to live with his mother or to find shelter by couch-surfing.

She could not rely on him to care for their children. When he was supposed to look after them he would leave them alone or refused to watch them altogether. He was never supportive of his family other than picking up the children from school or daycare periodically while the appellant was at work. The children love him and she allows him access.

She was paying almost for all household expenses. She had to always pay rent, hydro, cable, and child care when it was not covered by CCS. There were times when he gave her money and then he wanted it back. Sometimes he had a job. She never knew how much money he earned and he lied about his income. Whenever he had money he “took off”. Once they had a joint account but he cleaned it out and she had to open her own account.

She was living in an abusive relationship and endured financial abuse, physical abuse, verbal abuse and emotional abuse. He controlled the finances, was argumentative, not a good father and not a good person. She felt unsafe and her children needed protection. Their relationship was only okay in the beginning when the children were small. He might have been a good father in their first years.

She was mentally not able to break away from this relationship. It was better having him come and go than not having him at all. She allowed him to come whenever he needed her.

EAAT003 (17/08/21)8

Appeal # 2022-0074 Ministry Position The ministry determined that the appellant and her partner were residing together in a marriage-like relationship for the period of March 1, 2016 to August 31, 2016. Information regarding the appellant’s spouse’s income was not disclosed to the ministry until August 2016. In a subsequent recalculation, the reconsideration decision found the appellant ineligible for amounts of subsidy she received for the period of May 1, 2016 to August 31, 2016.

The ministry’s decision relied on the information the appellant provided to the ministry in August 2016 in which she advised that her partner had returned to live with the family in March 2016 and had been working since May 2016. For the renewal of the CCS benefit in August 2016, the appellant advised the ministry that they were a two parent, 4 unit family. Evidence confirmed the appellant’s statement that they were living together and shared a common primary address.

The ministry determined the letters provided in the Request for Reconsideration demonstrate the appellant’s spouse suffered from an alcohol and substance addiction, rendering him incapable of independently caring for the children. As such, in accordance with Section 3(2)(b)(xi) the ministry has determined that for the period March 1, 2016 and April 30, 2016, in a two parent home, the appellant required child care because one parent was employed and the other parent had a medical condition that interferes with that parent’s ability to care for his or her child. Therefore, the appellant was eligible for subsidy for both children, in the amount of $635.00/each per month, totalling $2,540 for the two months. This amount as been deducted from the total overpayment as determined by the Verification and Audit Unit.

Section 7 of the CCS Regulation sets out that an applicant must meet an income test to be eligible for subsidy. The ministry reviewed the pay statements for the appellant’s spouse that were attached to the Verification and Audit package, in conjunction with the Child Care Subsidy Overpayment Calculation provided by the Verification and Audit Officer. In accordance with Section 7 of the CCS Regulation, the ministry determined that the increase to the family income when taking into consideration his wage renders the appellant ineligible for subsidy. The ministry determined that due to the total family income the appellant was ineligible for subsidy she had received for the period May 1, 2016 to August 31, 2016. The appellant was not entitled to the subsidy of $4740.00 she received for the period between May 1, 2016 and August 31, 2016 and is liable to repay this amount.

Panel Decision The panel acknowledges that the relationship between the appellant and the father of her children was an immensely difficult one. The appellant had to take care of the great majority of family responsibilities and hardly received any support from him. In addition, she had to cope with his addictions which rendered him incapable of caring for their children and made family life even more challenging. Despite that she tried to support him in his struggle with his addictions and allowed him to come whenever he needed her.

EAAT003 (17/08/21)9

Appeal # 2022-0074

Based on all the evidence before them, the panel finds the ministry was reasonable when it determined that from March 1 to August 31, 2016 the appellant was living in a marriage-like relationship with her spouse, the father of their 2 children, according to section 1(1) of the CCSR. The key evidence is:

•

The appellant identified herself as “Married, or living in a marriage-like relationship” on a child care subsidy application that she and her spouse jointly signed.

Additional evidence in support of their marriage-like relationship: • The appellant was living together with the father of their children. • According to the appellant’s counsellor the appellant “was involved in a long-term common-law relationship”. • The appellant reported she tried to help him deal with his addictions. The appellant’s mother stated that her daughter “did her best to support him as he tried treatment/counselling for his addictions”.

However, the panel does not find the ministry reasonable when it determined that the appellant received an overpayment because she was ineligible for the period of May 1 to August 31.

While the ministry argues that due to the total family income the appellant was ineligible for the subsidy she had received for the period May 1, 2016 to August 31, 2016 the panel finds that the ministry’s family income calculation is not reasonably supported by the evidence. Specifically, the panel finds the ministry was not reasonable when it determined that the start date of the appellant’s spouse’s employment was May 1, 2016 even though the appellant had filled in May 20, 2016 in the CCS application. While the ministry recorded that the appellant said her spouse was working since May there is not sufficient evidence that May 1 was the actual employment start date - the evidence rather points to May 20. The ministry could not offer an explanation of this significant inconsistency as they were not present at the hearing.

Section 7 of the SSCR sets out that an applicant is not eligible for a child care subsidy if the family's monthly net income exceeds the child's income threshold.