APPEAL I PART C-Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation's (the ministry) reconsideration decision of February 13, 2014 wherein the ministry determined that the appellant must have $600 per month (an additional $300 over the current $300 that is deducted) deducted from her assistance to reflect the amount she receives from her ex-husband as child support. The ministry determined that the $300 paid by her ex-husband to their child's school on her behalf is considered unearned income and therefore must be deducted as required by the legislation. PART D -Relevant Legislation Employment and Assistance for Persons With Disabilities Regulation (EAPWDR) Sec 1, 9, and 24 Employment and Assistance for Persons With Disabilities Regulation Schedule A Sec 1, 2, 4, and 5 Employment and Assistance for Persons With Disabilities Regulation Schedule B Sec 1, 6, 7, and 8 EAAT 003(10/06/01)
APPEAl I PART E -Summary of Facts The information before the ministry at the time of reconsideration included the following: • A separation agreement between the appellant and her ex-husband dated June 28, 2007. The agreement obligates the appellant's ex-husband to pay the appellant $600 per month beginning June 1, 2007. The agreement outlines the child's fees for private school and that the appellant and her ex will share the $600 per month cost between themselves. The agreement goes on to detail that the ex-husband will pay the appellant $300 per month directly and pay $300 to the school on her behalf to equal the requisite $600 per month maintenance obligation. • A written statement on her Request for Reconsideration where the appellant writes that she has only ever received $300 per month from her ex-husband. She adds that she was unaware that her separation agreement was worded in such a way to suggest she was receiving $600 per month. • A written statement in the Notice of Appeal dated Feb 18, 2014. The appellant writes that she does not receive $600 per month and has only ever received $300 per month in child support from her ex-husband. She adds that she recently had a heart attack that resulted in 14 fractures. She writes that she has never claimed her son's school fees on her tax return and that her ex-husband has always claimed the fees as a tax deduction. She adds that if she has her benefits reduced by an additional $300 per month she will not be able to afford her rent. Neither the ministry nor the appellant was in attendance at the hearing. After confirming they both had been notified, the hearing proceeded under section 86(b) of the Employment and Assistance Regulation. The panel finds as fact: • The appellant signed a separation agreement dated June 28, 2007 with her ex-husband. • Part 6.1 of the separation agreement orders her ex-husband to pay her $600 per month beginning June 1, 2007. • Part 6.4 of the separation agreement states that couples' son goes to private school costing $7200 per year which the couple will share the expense. They agree that her ex-husband will pay $300 per month on the appellant's behalf towards their son's school fees and related expenses. The ex-husband will pay the remaining $300 per month directly to the appellant. EAAT003(10/06/01)
PART F -Re asons for Panel Decision The issue in this case i s the reas on ab lenes s of th e e x-hus b and pays $ 30 0 of c hild m a in t en a n ce payment to h er dire ctl y, th e entire $600 per mo nt h is cons id e re d i nc om e calcula tion under S c hedul e B. The re levant le gi s la t ion is as fo l lows: E m ploymen t and Assista nce for Persons With Disab 1 The l e gisla t i o n states: "unearne d incom inc o m e , a nd includes , without lim ita f oll owing: (a) m o ney , ann uities, s tock s , b onds, p roperties; (b ) cooper at ive ass o ci ation s a s de A c t; (c) war dis abil it y p ensio n s, m i l i t a (d) in surance ben efits, except insu (e ) su p er a nnua tion ben efits; (f) any t y pe or clas s of C anada Pension Plan ben (g ) e mp l oyment insur an ce; (h) un i on or lodge benefits; (i) financi al assi stanc e provid ed un provid ed by an ot her province or j ( j) worke r s ' c omp ensation b e n e f i ts and (k ) surviving spouses' or orphans' allowances (I) a trust o r inh er i tance ; ( m) rental of too ls, veh icles or e quipmen (n) ren t a l of l and , self-contai n ed reside nce o f a n ap plican t o r recipie (o) i nte res t ea r ned on a mortga ge (p ) mai n t enance under a cou rt order, a 9 (1) For the pur pos es of the Act and this regulation, "inc family unit, inc l udes an amo u nt garnishe t h e income of an applicant, a recipient or a depe (2) A family unit is not eligible for disability assista unit determined under Schedule B equals or assistance determined under Schedule A for a family unit matching that family unit. 24 Disability assistance may be provided to or for a family unit, for a calendar month, in an amount that is not mor (a) the amount determined under Schedule A, minus (b) the family unit's net income determined under Schedule B. Employment and Assistance for Persons With Disabilities Regulation Schedule B Deduction and exemption rules 1 When calculating the net income of a family unit for the purposes of section 24 [a m ount of di sability assistance] of this regula a th e followin are exem t from income: EMT 003(10/06/01) APPEA I mi n is t r y's d ecisio n that because t he app ell ant's her child's scho ol on h er beh a lf and $300 t o unearned income and i s no t e xem pt fro m her net ilities Regulation e " m ea ns any income that is not earne d tion, mone y or valu e received from an y of th e shares, a nd in t erest bea ring ac cou n ts or fined in the R eal Estate De vel opm e n t M ar keting ry pensio ns and w a r v eter an s ' all owa n c es; rance paid as c ompensat ion for a de s t r o yed asset; e f i ts; der the Emplo yment and Assistance Act or urisdic tion; disab ili ty payments or p e nsion s ; ; t ; s uites or o t her pr o p e r t y ex cep t t he pl ace o f nt; or a greeme n t for sale; sep arat ion ag reement o r o t her agr e ement; om e", in relation to a d, attached, seized, deduct ed or set off from n d ant. nce if the net income of th e family e xc e eds the amount of disa b i l i ty e th a n (b) ti on,
( i) any i ncome e arned by a d epen ( i i) t h e bas ic family care rate pa (ii i) R epe aled. [B.C. Reg . 48 / 2 0 1 ( iv) a fam ily bonu s, exc e pt the por 1 0 (1) of this Sch edule; ( v) t h e bas ic chi ld tax b e nefit; (vi) a good s a nd s e r v ice s tax credit u (v ii) a tax c red i t un der s e ction 8[re cl i mate a cti o n tax credit] or 8.2 [BC harmoniz Act (Britis h Col u m b i a); ( vii i) individual r e dress payment pe rson of Ja panese a n cestry ; ( ix) i n d ivi dual p a y ments gra nt ed Extr aor d inary As sis tan ce Plan to v irus ; (x) indi vidual payments granted by the pe rson inf ected by the hum a n immunodef dep endent chi ld ren of that pers on ( xi) individu al payme n t s g rant e E xtrao rdinary A ssi stan ce Pl a n to thali (xii) mo n ey that is (A) paid or payab l e to a pers on adjudicative panel in respe c t o f and dra wn fr om a lump s u m se ttleme Co lu mbia, o r ( B ) paid o r paya b l e to or for a p se tt l ement agree ment app roved Van couver R egist r y; (xiii) t he BC earned income bene (xiv) mo n e y paid o r payable u nd A g re ement m ad e June 15 , 19 99, o r 6.0 1 of Schedul e A or of Sched (xv) a r ent su b s idy p ro vid ed by the provincial governm society o r government al ag en cy that ad gov er n ment; (xvi) Re pealed . [ B.C. Reg . 19 7/ ( xvii) money pai d or payable to a person in settlement of a c Indian residential school, except money paid or payable as income replacement in the settlement; (xviii) post adoption ass istance t he Adoption Re g ul a ti o n , B.C. Reg. 291/96; (xix) a rebate of energy or fuel tax provided by the government of C government of British Co lu m bia , or a (xx) money pai d by the government of British Columbia, und agreement, to a per s on with di s abili with disa b ilities to enable the person with instead of in an institution; (xxi) Repealed. [B.C. R eg. 85/2012 (xxii) payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act; (xxiil) payments granted by the government of British Columbia under the of Children and Family Development's At /xxiv) Reoealed. fB.C. Req. 85/2012 EAAT 003(10/06/01) APPEAL I d en t chi ld attending sc h oo l on a fu ll-time basis; id f o r f oster homes; 0 , Sc h . 1 , s. 2 ( c).] t i on tr eate d a s unearn e d i ncom e un d er s e ctio n nde r the Income Tax Act ( Canada); fun dable saf e s tax credit ], 8.1 [low income ed sale s t ax c redi t] o f the Income Tax s g ranted by the g overnment of Canada t o a by th e g ov ernm ent of Cana da un der the a person inf e c t ed by th e hum a n im munodefi ciency g ov ernm e n t o f Briti s h Col um bia to a icien cy virus or to the su rvi vin g s pou se or ; d by t h e govern me n t of Cana da u nder the do m ide vic t ims; if t h e money is aw a rde d to t he per s on by a n clai ms of abuse a t Jer icho H ill S chool for the Deaf nt paid by the g overnme nt o f British er s o n if t he paymen t is in acc or d a nce with t he by t h e Supreme Court in Action No . C980463 , fit; er t h e 1 986-1 99 0 Hepat itis C S e tt l ement e x cept m o n e y paid or payabl e un d er s ection 4 .0 2 u le B of tha t agre eme n t; ent , or by a coun ci l, board, m iniste rs r ent subsid ies f ro m t he pr o vinc i al 2 012, Sch. 2, s. 11 (a ).] l aim of abuse at an payments provided u n d er section 28 ( 1) or 30.1 of anada, the n agency of either government; er a written t ie s or to a trustee for the b enefit of a pe rson d isabilities to live in the c omm unity , Sch. 2, s . 7.] Ministry Home Program; Sch. 2. s. 7.1
(x xv) payme nts gra n t e d by th agree men t r e ferr e d to I n s ection Se rvi ce A ct, for con t ribut ion s to (xxvi) a loan that is (A) n o t g rea t e r than the a mount ac cept e d by the min is ter under sec (B) r e ceive d and used for th e p ( xxv i i) pa yment s gr anted by t he Ministry of C h i l dren and F am i ly ( A) Aut ism Fundi ng : U n der Ag e (B) Autism Fundi ng : Ag es 6 -1 (x xvili) that po rtion of t he m a in d isabil ities or a p e r s on a ged 19 filed with a court; ( x xix) paym ents made b y a h e to a recipi e nt, w ho i s a " p e r s on th e Mental He alth Ac t, fo r th e p a v o luntee r pro gra m or in a mental h (xxx) a refu nd p rovided u nde r pr ogram e stabli sh e d u nder t he C 146/95; (xxxi ) p ay men ts pr ovid ed b y Communit for a r e ci pie nt in t he fami ly uni t t w o rk placem ent pro gram, a p pro (xxx i i ) a U niv er sal Ch ild C are Benefit pro Benef i t Act (Canada); (xxxi ii) mon e y pai d b y the g ove to pe r sons who contra cte d Hepatiti Ca n a da prior to 1986 or a fter Ju agree me nt as income r e p l a ceme (xxx iv) money wi t h drawn from ( x xxv) a worki ng inco me tax be (C anada ); (xxxv i) Repealed. [B.C. R eg . 180/2 (xxxv ii) the climate action div idend (xxx v ii i ) money paid or pay abl Compensation Act as compensation for non-pecuniary loss or dam suffering mental or em o tion a l trauma, humiliation or in w h en the person was under 19 ye (xxxix) money that is paid or payable to or for a person if the payment accordance with the settlement agree Action No. S024338, Vancouver Registry; (xi) payments grante d by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program; ( xii ) paym ents gra n te d b y the gov of Children and Family Development's (xiii) payments granted by the government of British Columbi of Childre n and Family Development's Aboriginal Supporte program; (xliii) money paid or payable from a fund that is established by the government of British Columbia, the government of Canada and the City of Vancouver in relati to recommendation 3.2 of the final report of the Missing Women Commission of Inquiry, (bl anv am o unt aarnlshed, attached, seized, deducte EMT 003(10/06/01) APPEA I e governme nt of Br iti s h Col um b ia under an 93 (1) (g) (ii ) o f the C hild, F amily and C o mmu n ity the supp o r t of a c hi ld; conte mplat e d by the recipi ent ' s busine s s plan, tion 70.1 of this re gulation , and ur p oses se t out in t he bu s i n ess plan; government of Brit ish Columb i a u nd e r the Develo p ment's 6 P rogra m , or 8 Program; te n a n ce paid for an d pa ssed on to a pers o n with or old e r un der a maintenance order o r agreement alt h autho r i ty or a c ontracto r o f a health autho r ity w i t h a me ntal di sorder " as d ef ined in section 1 o f urpos e of supp or t ing th e recipient in participating i n ea lt h or addic tions reha bi li tatio n pr o gr a m ; Pl an I, "F ai r Phar m a Care", of the PharmaCare ontinuin g Car e P rogr ams Regulat ion , B.C. Re g. y Livi ng B C to ass ist wit h trav e l expen ses o atten d a s elf-h el p s ki lls pro gra m, or a s upp orted ved by Comm u nity Living BC; vi de d un de r t he Univers al Child Care rn men t of Canada, un de r a se ttl ement agree m e n t , s C by r e ceiving b loo d or blood pr oduc t s in ly 1 , 199 0, exc ept m oney pa id un der that nt; a registered disa b ility sa v ings plan; n e fit pr ovided und e r the I n co me Ta x A c t 010, s. 2 ( b ).J und er se ction 1 3. 02 of the Inco me Tax Ac t; e to a perso n under the Cr i m i nal I njur y age for pain, con v e nience that occurred a rs of age; is in m e n t approved by the Supreme Court in er n m en t of Britis h Columbia un de r t h e M inistry Supported Child Development program; a under the Ministry d Child Develop m e n t on d or set off from income is �c___ ____,
APPEAL I considered to be income, except the deductions permitted under sections 2 and 6, (c) all earned income must be included, except the deductions permitted under section 2 and any earned income exempted under sections 3, 3.1 and 4, and (d) all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 7, 7.1, 7.2 and 8. It is the ministry's position that although the appellant's ex-husband pays $300 of her child maintenance payment to their child's school on her behalf and $300 to her directly, the entire $600 per month is considered unearned income and is not exempt from her net income calculation under Schedule B. Therefore $600 must be deducted from her disability assistance as per section 24 of the EAPWDR. It is the position of the appellant that she has only ever received $300 per month from her ex husband for child support and that she cannot afford to have an additional $300 per month come off of her disability assistance. The panel relied on the separation agreement to determine what the appellant receives from her ex husband in child maintenance. The separation agreement provides the appellant with $600 per month based on the income of her ex-husband at the time the agreement was finalized. Part 6.1 of the agreement reads that, based on an annual income of $64,000, the appellant's ex-husband is obligated to pay her $600 per month in child maintenance. Section 6.4 of the agreement reads that the combined tuition and related school expenses for their child is $7200 per year and that each parent is to pay half, equaling $300 per month each. The agreement goes on to detail that the ex husband agrees to pay the appellant's portion of school related expenses on her behalf and to pay the remaining $300 per month directly to the appellant. The panel considered the appellant's argument that she has only ever received $300 per month from her ex-husband. The panel accepts that the appellant receives $300 directly from her ex-husband however; the panel finds that the ministry was reasonable to consider that the full amount of the benefit received by the appellant is $600 per month. The panel finds that the ministry reasonably calculated the $300 paid by the ex-husband to the child's school related expenses as part of the overall maintenance payment. The panel finds that the ministry was reasonable to consider the $600 per month as unearned income as defined by Section 1 the EAPWDR and that it is not exempt under schedule B and is to be deducted from the appellant's disability assistance in accordance with Section 24 of the EAPWDR. The panel finds that the ministry's decision was a reasonable application of the legislation and therefore confirms the ministry's decision. EMT 003(10/06/01)
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