P A R T C D e c i s i o n u n d e r A p p e a l U n d e r a p p e a l i s t h e F e b r u a r y 2 i , 2 0 i 4 r e c o n s i d e r a t a n d S o c i a l I n n o v a t i o n ( " t h e m i n i s t r y " ) f i n d i n g t h a t M r s e c t i o n s i a n d i . i o f t h e E m p l o y m e n t a n d A s s i s t a n c t h e r e f o r e a p a r t o f t h e f a m i l y u n i t , a n d a s t h e a p p e l l a e n t i r e f a m i l y u n i t , t h e a p p e l l a n t i s n o t e l i g i b l e f o r d i s a t h e E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s w i t h D i P A R T D R e l e v a n t L e g i s l a t i o n E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s w i t h D i s a b i E m p l o y m e n t a n d A s s i s t a n c e f o r P e r s o n s w i t h D i s a b i E M T 0 0 3 ( 1 0 / 0 6 / 0 1 )A P P E A l I i o n d e c i s i o n o f t h e M i n i s t r y o f S o c i a l D e v e l o p m e n t . S . m e e t s t h e d e f i n i t i o n o f d e p e n d a n t u n d e r e f o r P e r s o n s w i t h D i s a b i l i t i e s A c t a n d i s n t h a s n o t a p p l i e d f o r a s s i s t a n c e o n b e h a l f o f t h e b i l i t y a s s i s t a n c e i n a c c o r d a n c e w i t h s e c t i o n 5 o f s a b i l i t i e s R e g u l a t i o n . l i t i e s ( E A P W D A ) s e c t i o n i a n d i . i l i t i e s R e g u l a t i o n ( E A P W D R ) s e c t i o n 5
PAR T E -Summar v of Facts At the hear ing the appel lant a gre ed t o the attendanc The a pp e ll an t left th e hear ing a t 9:55 a.m. Th e a ppella nam ing her leg al cou nsel a s her repres en tati v e with aut the hearing con ti nue d. The evid ence bef ore t he min ist ry at rec onsi derat ion 1 . The appell ant i s a r e cipi ent di s ab il ity as si sta nce as as her dep end en t child f ro m December 1995 thro ugh 2. The appe llan t's Request for R eco nsider ati on d ate submission in w hich th e ap pellan t s tates: • she has never been ro man t i cally i nvolved wi th de fini tio n th at a rea s o na ble lay per s on w ou ld understan • she has be en renting spa c e in M r. S' s h ome f • a f ter 20 years o f te nan cy s h e was notified in 201 min istry for pote ntially r e ceivi n g disa bili t y benefits fo comp lete ly co-o perativ e with t he minist r y and the ir investigat • she w as c har g ed in 2 011 wit h fraud. • she asked at t hat tim e if she should m ove out of M guidanc e. • she li ves with enormous fear and anx iety every day, and livi frie nd has b een a gr eat benefit to he r a ll these years. • it was only when she recei v ed t he ev i dence pack aw are o f the ext r e mely b road def in itio n i n th e le gisla purpose o f d is a bil ity be ne f it eli gibil ity. Mr. S, C an adian d efin ition of spouse w as so broa d. • she is an immigrant, whose first language is not English, and suffers fr and mental health issues. • sin c e t he birth o f her fi r st c h i ld in 1 9 95, who has been o n c oping f rom d ay to d ay. • at age 17 sh e was imprisoned in her home country as a po she was beaten, torture d, raped, shot , had her back and skull fractu to another country. • in 2008 she was diagnosed with clinical depressio disorder. She req ui r e s nin e medica tions and is terrified of to afford the medicatio n s, which would put her li f e at risk. • two days before the trial was to begin she was offered and accept drop all charges against Mr. S and allow her to plead guilty to a non-crimi and avoid imprisonment. She believed she did not intentionally do anything wrong, although she came to realize she had made some serious mistakes. • she understood that her non-criminal conviction for providing false or misleading information to the ministry would result in her mo n th l y benefits being reduced months later learned the deduction was actually $200 a month. EAA T003( 10/06/01) I A P PEAL e of tw o m i n i stry obse r v ers. nt had s i gne d a r el ease of inf ormation form ho r it y to mak e dec isions on her b eh a lf , an d w a s a si n gle parent. H er dau ghte r was on h er fil e N ov ember 20 13, and h er son f ro m Ma y 2 00 2. d Fe brua r y 7, 2 014, to wh ich was a tta c h ed a M r . S and has n ever been h is spouse by a ny d o r a gree w i t h. or many y e ars . 0 t ha t s he was under i n vesti g ation by the r which she was not en ti tled, a n d t hat she w as i o n. r. S' s home , b ut t he min is try gave her no ng in a safe house with a tru s ted age for t he legal pro c e ed in g she beca me t io n d efin ing s p ousa l relat ion ships fo r th e born, univers it y e duc a te d, had no idea the om numerous physical s ever e multiple disa b ilitie s, h er fo cu s has li tical p ris one r, during which ti m e red, and was eventually d eported n , bipolar disorder and post-tr aumatic stres s losing disabili ty benefits and not being able ed a plea bargain that would nal administrative charge by $100 a month for one year, bu t two Aaain she asked the ministry for
I APPEAL guidance as to whether she should move out of Mr. S's house, but was given none. • she understood when she agreed to the plea bargain that would be the end of the process, and says it seems completely unfair she was not told at the time her benefits would be cut off, and does not understand why the ministry took one year to take this action. • she has lived by the knowledge gained from the evidence package provided in 2011 regarding the mistakes that were made that put her at risk of being considered a spouse. She states that ever since then she had been extremely cautious and conscientious to ensure that she does not take any action that puts her at risk of being considered anyone's spouse per the ministry's definition. • her position is that she has been held to account for her past mistakes and accepted the punishment for them. She plead guilty to providing false or misleading information, but did not plead guilty to ever being Mr. S's spouse, and categorically denies she was ever his spouse. • Mr. S has given her time to resolve this with the ministry, but has made it clear he his unable and unwilling to allow her to live in his home without paying rent, and that she and her children will be homeless if the ministry does not restore her benefits. 3. The ministry submitted 62 exhibits, accompanied by a 23 page document summarizing chronologically the results of their investigation and the related exhibits. The exhibits relate to four issues, in summary: 1) residential arrangements of the appellant and Mr. S: Documents from 1992-2013 relating to the various residences in which the appellant and Mr. S lived, including rental receipts from Mr. S to the appellant, tenancy agreement, and Land Title documents showing both the appellant and Mr. S on title of one property and holding a mortgage together. 2) financial dependence/interdependence: Mr. S's employee cards from 1993-2000 showing the appellant as his spouse; Mr. S's 1995 life beneficiary designation of the appellant, shown as his spouse; Mr. S's 1993 Visa receipt for payment of the appellant's college course; 2004, 2008, 2009 motor vehicle accident reports showing the appellant as driver of a vehicle registered to Mr. S; Motor Vehicle Branch 2006 registration showing the appellant as primary operator of a vehicle registered to Mr. S. 3) social and familial interdependence: In addition to some of the documents noted above, documents including 2010 computer printout of Mr. S's employee Dependent-Beneficiary and Health Benefit Elections screens showing the appellant as his spouse and the appellant's son as his son; 2007-2009 dental records for the appellant showing the insured as Mr. S. There are 15 witness statements by neighbours, tenants, friends and Mr. S's work colleagues describing their understanding of the family relationship between the appellant and Mr. S, largely concluding they were a couple. One witness, Mr. S's former supervisor, said at an outside-of-work function she met the appellant and daughter at a barbeque held at the home of another staff person, and the appellant, daughter and son attended with Mr. S at a memorial service for the witness' mother. There was also a witness statement by the appellant's ex-husband saying he and the appellant were divorced in 1991 and they did not have any children together. 4) parental role: In addition to some of the documents listed above, aoolications for leaves of absence for . .. , EAAT003(10/06/01)
t h e b i r t h o f h i s c h i l d , f o r h i s s i c k c h i l d , m e d i c a l a p p o a n o u t o f p r o v i n c e c h i l d r e n ' s h o s p i t a l t o M r . S a n d t h a p p e l l a n t s h o w i n g M r . S a s a f a m i l y m e m b e r ; 2 0 0 8 -M r . S a s t h e p e r s o n l e g a l l y r e s p o n s i b l e a n d m a k i n g A t t h e h e a r i n g c o u n s e l f o r t h e a p p e l l a n t s u b m i t t e d a 2 0 1 0 i n t e r v i e w o f a s o c i a l w o r k e r b y a m i n i s t r y i n v e s p a t h o l o g i s t , a n d a J u n e 2 5 , 2 0 1 4 l e t t e r f r o m a r e s p i t t h e a p p e l l a n t a n d M r . S . w e r e n o t i n a s p o u s a l r e l a t i b i n d e r w i t h t h r e e c a s e l a w d e c i s i o n s , i n s u p p o r t o f h T h e m i n i s t r y ' s c o u n s e l s u b m i t t e d t w o c a s e l a w d o c u A t t h e h e a r i n g o r a l e v i d e n c e w a s g i v e n b y t h e w i t n e a p p e l l a n t ' s c o u n s e l a n d b y t h e m i n i s t r y ' s c o u n s e l , h e h e r b o y f r i e n d / h u s b a n d , w h o l a t e r d i e d o f l e u k e m i a . t h e a p p e l l a n t m i g h t b e h a r a s s e d o r h a r m e d b y e l e m s a m e c o u n t r y a s t h e o n e f r o m w h i c h t h e a p p e l l a n t h a p p e l l a n t . T h e a p p e l l a n t w a s p r e g n a n t a t t h e t i m e o f a p a r t m e n t j o i n t l y w i t h t h e a p p e l l a n t , d e s c r i b i n g i t a s a f i s h i n g c h a r t e r b u s i n e s s a n d s p e n t m u c h o f h i s t i m a p p e l l a n t w a s h i s r e n t p a y i n g t e n a n t , a n d a g a i n h e s p u r c h a s e d a h o u s e w i t h t h r e e b e d r o o m s u p , t w o d o w b e d r o o m w i t h t h e a p p e l l a n t . H e f e l t a n o b l i g a t i o n t o f i r s t c h i l d w a s b o r n w i t h m u l t i p l e s e v e r e d i s a b i l i t i e s . e v e n t . M r . S s a i d h e h e l p e d t h e a p p e l l a n t w i t h t h e k i d s s o t h i n t h e r e l a t i o n s h i p b e t w e e n t h e a p p e l l a n t a n d t h e m i u n d i a g n o s e d e m o t i o n a l p r o b l e m s . H e " f i l l e d g a p s " . m e d i c a l / d e n t a l c o v e r a g e . H e k n e w i t w a s w r o n g b u t H e a d m i t t e d t o l i s t i n g t h e a p p e l l a n t a s a s p o u s e o n h b e a f a m i l y m e m b e r , t h e r e s t o f h i s f a m i l y d i d n o t n e e t h e m o n e y t o h e r . H e d e n i e s b e i n g t h e f a t h e r o f t h e i n a c o n j u g a l r e l a t i o n s h i p w i t h h e r . I n e x p l a i n i n g w h y t h e a p p e l l a n t w a s s h o w n a s 9 9 % o t o l d h i m h e c o u l d l e g i t i m a t e l y a v o i d t h e p r o p e r t y t r a n t i m e o w n e r , u n d e r a t r u s t a r r a n g e m e n t . W h e n t h e m t a x a n d t o o k t h e a p p e l l a n t o f f t i t l e . W h e n a s k e d a b o u t t a k i n g d a y s o f f w o r k f o r b o t h c h i l d c o v e r a g e , h e k n e w h e w a s b r e a k i n g r u l e s , b u t f e l t h i a n d h e w a s o b s e s s e d w i t h h e l p i n g t h e a p p e l l a n t . I t c g r o u p d o c u m e n t s s h o w i n g h i m a s t h e f a t h e r , h e s a y s d e n t a l o f f i c e j u s t a s s u m e d i t . H e s a i d h e m a d e n o d e E AA T 0 0 3 ( 1 0 / 0 6 / 0 1 )I A P P E A L i n t m e n t f o r h i s d e p e n d e n t c h i l d ; 2 0 0 1 l e t t e r f r o m e a p p e l l a n t ; 2 0 0 6 s c h o o l r e c o r d s i g n e d b y t h e 1 0 d e n t a l r e c o r d s o f t h e a p p e l l a n t ' s s o n s h o w i n g d e c i s i o n s f o r t h e s o n ' s d e n t a l c a r e . d d i t i o n a l d o c u m e n t a r y e v i d e n c e : a M a r c h 2 5 , t i g a t o r , a J a n u a ry 1 6 , 2 0 1 3 l e t t e r f r o m a s p e e c h e c a r e w o r k e r . A l l t h r e e e x p r e s s e d t h e o p i n i o n o n s h i p . T h e a p p e l l a n t ' s c o u n s e l a l s o s u b m i t t e d a e r a r g u m e n t . m e n t s , i n s u p p o r t o f t h e m i n i s t r y ' s a r g u m e n t . s s M r . S . I n a n s w e r t o q u e s t i o n s b y t h e s a i d a t u n i v e r s i t y h e m e t t h e a p p e l l a n t t h r o u g h T h i s f r i e n d t o l d M r . S t h a t h e w a s c o n c e r n e d t h a t e n t s o f t h e l o c a l c o m m u n i t y w h o w e r e f r o m t h e a d e m i g r a t e d , a n d a s k e d M r . S t o l o o k o u t f o r t h e h e r b o y f r i e n d ' s d e a t h . M r . S l e a s e d a n e s s e n t i a l l y h e r s b u t t h e y s h a r e d t h e r e n t . H e h a d e o n t h e b o a t . L a t e r h e b o u g h t a c o n d o , t h e a i d i t w a s m o r e h e r r e s i d e n c e t h a n h i s . M r . S n i n a r e n t e d s u i t e . H e s a i d h e n e v e r s h a r e d a h e l p t h e a p p e l l a n t g i v e n h e r b a c k g r o u n d . T h e H e d e s c r i b e d t h e a p p e l l a n t a s " d e s t r o y e d " b y t h a t e y w e r e p r o p e r l y c a r e d f o r . H e w a s n o t i n v o l v e d n i s t r y . H e s a i d t h e a p p e l l a n t h a d s e r i o u s H e p u t t h e a p p e l l a n t o n h i s e x t e n d e d c o n s i d e r e d i t a r e a s o n a b l e b e n d i n g o f t h e r u l e s . i s l i f e i n s u r a n c e . H e t h o u g h t a b e n e f i c i a r y h a d t o d t h e p r o c e e d s , a n d i t s e e m e d o b v i o u s t o l e a v e a p p e l l a n t ' s s o n , s p o u s e t o t h e a p p e l l a n t , o r b e i n g w n e r o n t h e h o u s e h e b o u g h t , h e s a i d h i s l a w y e r s f e r t a x b y u s i n g t h e a p p e l l a n t ' s n a m e a s a f i r s t i n i s t r y r a i s e d q u e s t i o n s , h e i m m e d i a t e l y p a i d t h e r e n , M r . S s a i d , l i k e w i t h t h e m e d i c a l a n d d e n t a l s c o m p e n s a t i o n p a c k a g e p r o v i d e d t h e b e n e f i t s , o s t h i m h i s j o b a n d c a r e e r . A s t o t h e d e n t a l h e d i d n o t r e p r e s e n t h i m s e l f a s a p a r e n t , t h e c i s i o n a s t o e d u c a t i o n o r c a r e o f t h e c h i l d r e n , h e
APPEAL I had no authority to do so, but acted as an advocate or intermediary for the the appellant to get needed care for the kids. He said he always made it clear he wasn't the father or husband. In response to questions about witness statements, Mr. S says he did not refer to the appellant as his wife, the witnesses were incorrect about a spousal relationship. One witness suffered serious head injury in a motor vehicle accident and has problems with memory and other things. Another witness was a tenant in his basement suite. Mr. S denied events described in that witness' statement, saying he had a policy of maintaining a distance from his tenants, had no social interactions with any of his tenants. He denied referring to the appellant as his wife, but he might have said "the kids", and that he did refer to the appellant as "the home boss". Mr. S said he never claimed the appellant and children on his income tax returns, which was confirmed by the ministry's investigation. Mr. S said without his assistance the appellant would have needed additional care givers. He stepped in as a friend, it seemed unconscionable to do otherwise. Mr. S confirmed he did attend the Toronto hospital with the appellant and her child, although he did not answer when asked who paid his airfare. He also said the appellant used and paid for the insurance on an older car he owned. Counsel for the ministry objected to admission of the documentary evidence submitted by the appellant's counsel and parts of the witness' evidence because it was not information before the reconsideration officer. The panel found this evidence was in support of the evidence before the ministry at reconsideration, as it was provided to substantiate the statement by the appellant in her reconsideration submission denying that she was ever a spouse. Accordingly, the panel admits this evidence under section 22(4) of the Employment and Assistance Act. EMT003(10/06/01)
I AP PEA PART F -Reaso n s for Panel Decision The issue is the reasonableness of the mi nistry's de ci sion finding the app ell ant ineligible f or disabi lity assistance on t h e bases that Mr. S meets the definition of a dependan t, both under i te m (c) of the d efinition o f dependant in s ection 1 (1) o f the E APWDA and as a s p ouse under section 1. 1 o f the EAPWDR, and is therefore a part of the appellant' s fa mily , and the a ppellant had not appl ied for as sistance on b e half o f the entire famil y unit. Relev ant Legislation EMPLOYMENT AND ASSI ST A NCE FOR PERSONS WITH DISABILI T I ES ACT Interpretation 1 (1) In th is A ct: " depe nda nt" , in relati o n to a perso n, means anyone who resides w ith t he person an d wh o (a) is t h e spo use of the p er s on , (b) is a dependent child o f t h e p er s on , or (c) i ndi cates a p arental role f or the person's depen den t child; Meaning of "spouse " 1.1 ( 1) Two p ersons, inclu d i n g persons o f th e same gender, are s pou s e s o f each o th e r for th e pu r p os es o f this Act if ( a) t hey a r e married to e ach o t he r; o r (b) t hey a c know l e dg e to t he minist e r tha t they a re re siding togethe r in a mar r iage-li k e re l atio n ship. (2) Two persons who reside toget her; incl u ding persons of the s ame gende r; are sp o uses o f each other f or the purpo ses o f this Act if ( a) t hey h a ve r e s i ded together fo r a t least ( i ) th e prev i ous 3 c on sec ut i v e mo nt h s , o r ( ii) 9 of the p r e vious 12 m onths, an d (b) the m iniste r is satisfied tha t the rela tio n sh ip d e m onstrates (i) financial dependence or interdependence, and (ii ) s o cial a nd familia l interdependenc e, consistent with a marriage-like relationship. EMPLO Y MENT AND ASS I ST ANCE F OR PERSONS WITH DISABILIT I ES REGULATION Applicant requirements 5 For a family unit to be eligible for disability assistance or a supplement, an adult in the family unit must apply for the dis abili t y assis tance or supplem ent on behalf of the fam ily u n it unless (a) the family unit does not include an adult, or (b) the spouse of an adult applicant has not reached 19 years of age, in which case that spouse must apply with the adu lt applicant. EMT003(10/06/01)
Panel's Decis ion Spousa l r elations hip unde r se ction 1.1 o f the E APWD The p a nel n ot es t hat the definition of spouse set out purpose s of this A ct . " T wo p e op le may meet th e section under th e colloquial meaning of spouse or as defined in other leg Sub section (1) of section 1.1 does not apply in this appeal, as to each other, nor do they acknowledge to th e min i ster that they ar like relat io n ship. Th e ministry relied on subs ection (2) of section app e l lant and Mr. S have a spousal relationshi p . T here is no dispute that t he res id e n cy cr iter ion set out in para m e t. I n he r re cons ider ation s u bmis sion, the a ppellant ack mi n i s t r y s ubmiss ion , I have been rentin g sp ace i n Mr. and my ch ildren, fo r m any years." No tin g the var io us addresses d ati ng back to 1992 in t he minis try's evi d r easonabl y conc lud e d t ha t t he r e s i dency cri terion set out At issue is whet h e r the remaining t wo cri teri a set o ut me t: ( i) f inancial dependen ce o r interdep e n dence con social an d fa mil ial interdepend e n ce con sis ten t with a Fi nancial dependence or interd ep ende nc e I n the r econs i d e ration d ec ision the ministry n o tes that in 19 medic al a nd den ta l p la n as his spouse a nd in 1 995 she was ad employer spons o r e d life insurance plan. The ministry further note S pu r c has e d a p roper ty together an d were both list ed advised a ministry worker that she pays for Mr. S's car insurance. The position of the ministry is that t h ese circumstances indicate a pattern of being financially interdependent as they share assets and pay for things for each other, such as medical and car insurance. The ministry argued that the appell a nt has n ot sp oken to or disputed any of the doc that the ir financial relationship has changed and that this financia w it h th e lan dlord tenant relatio ns hip or one of mere frien of financial interdependence and the decl ar a tion o f being spouses on fin th at the a p pellant's an d Mr. S' s r el ations hip demonstrates finan consiste nt with a marriage-li ke relati onship, thus meeti 1.12)( b )( i). The appellant disputes this finding. At the hearing, Mr. S testified that when he enrolled the appellant and the children in his employer sponsored health and dental plans he thought he was only "bending" the rules, not "breaking" them and he now regrets doing so. He stated that he was motivate inade uac of dental care rovided b the minis! and wished to make sure that the a EAAT003(10/06/01) I APPEA, A i n secti on 1 .1 of t he EAPWDA is "for the 1.1 definit io n while not being conside r e d so is l a tion. th e a pp e l lan t a nd M r. S are not married e resi ding togeth er i n a mar riage 1.1 in it s determ i nation that the g ra ph ( a) o f sub sect ion ( 2 ) h a s been nowled ges tha t "As eviden ced in the S' s home, fi r st for myself an d la t er fo r myself shelter forms fo r re si d ence at fo u r d i fferent e nc e package , the pan e l finds that th e ministry in sec tion 1 .1( 2 )(a) h a s be en met. i n subsec tio n ( 2)(b) of sectio n 1.1 have been s istent wit h a m arr iage like-re l ati o nsh ip and (ii) mar riage like relat ionship. 92 th e appell ant was ad ded to Mr. S's ded a s his sp ou s e ben eficiary for h i s s that in 19 96 the app e llant and Mr. on the m ortgage. In 2006 the ap pel lan t um entary e vid e n ce and there is n o indi c ati on l interdependence is not consistent ds. The mi nistry is satisfied th a t the pattern ancial documents establishes c ial depende nc e o r interdependence ng the criterio n of spouses unde r sect ion d by the ellant and
I APPEAL her children had dental care up to Canadian standards. Purchasing the house together, with the appellant being shown as having a 99% interest, was suggested to him by a lawyer as a way of avoiding the property transfer tax, with the appellant as a first-time buyer. He explained that the appellant was unlikely to ever be in a position to claim this exemption on her own. When this transaction was questioned by the ministry, he paid the taxes in full and the property is now in his name only. As to the insurance policy, he stated that the rest of his family is doing well financially and would not need the proceeds from the policy in the event of his death and that the money would better go to someone who truly needs it, namely to the appellant. He acknowledged that the appellant at one point had use of his car, but it was an older model second car and she paid the insurance. Mr. S argued that these arrangements reflected his concern for the well-being of the appellant and her children, particularly taking into account the appellant's fragile mental and emotional health and the disabilities of one of the children, and his promise to his late friend to look after the appellant. Panel findings The panel notes that in enrolling the appellant as his spouse for his employer sponsored medical and dental plans, Mr. S certified that all statements were true and complete. Through enrolling the appellant in these plans, Mr. S provided the appellant with long-term healthcare benefits. In doing so, the panel finds that the ministry was reasonable in considering these ongoing financial ties to be consistent with providing for a spouse in a marriage-like relationship. The complex financial maneuver to avoid the property transfer tax in the purchase of their residence involved Mr. S assigning 99% of the property to the appellant as trustee of a trust. Considering the financial risks involved, the panel views this transaction as demonstrating a financial bond and interdependence between the two as consistent with a marriage-like relationship. In terms of Mr. S providing a car for the use of the appellant, with her paying the insurance, the panel finds ii reasonable that the ministry would consider such an arrangement demonstrating financial dependence or interdependence consistent with a marriage-like relationship. In her submission at reconsideration the appellant states that she has lived by the knowledge gained from the evidence package provided in 2011 regarding the mistakes that were made that put her at risk of being considered a spouse. She states that ever since then she has been extremely cautious and conscientious to ensure that she does not take any action that puts her at risk of being considered anyone's spouse per the ministry's definition. The panel notes that neither the ministry nor the appellant have provided a detailed description or analysis of how their household finances are managed, including who pays for food, hydro, municipal services, telephone and cable and the children's clothing and school supplies. The appellant had every opportunity to provide such information at reconsideration, including what might have changed since 2011. Without such information, and considering the above analysis of the evidence, the panel finds that the ministry reasonably determined that the relationship between the appellant and Mr. S demonstrates financial dependence or independence consistent with a marriage-like relationship. Social and familial interdependence In the reconsideration decision, the ministry notes that Mr. S took a day off work for the birth of a child and that this date corresponds with the date the appellant's daughter was born. From 1996 -2003 Mr. S took 30 days of medical leave from work for a dependent child. The ministry notes that onlv the EAAT003(10/06/01)
I APPEAL appellant's children live in the home with her and Mr. S and that taking time off work to care for a person's child is not consistent with the landlord/tenant relationship. The ministry goes on to cite other documentary evidence, including 15 witness statements explaining how these witnesses have seen the appellant and Mr. S present as a couple in the community. In the reconsideration decision the ministry argues that the appellant has not spoken to or disputed any of the documents in the evidence package and there is no indication that the relationship between her and Mr. S has changed. The ministry notes that Mr. S has listed the appellant and her son as dependants. The ministry argues that their social and familial actions are not consistent with the landlord tenant relationship or one of mere friends. The ministry is satisfied that the pattern of familial and social interactions establishes that the appellant and Mr. S demonstrates social and familial interdependence consistent with a marriage-like relationship, thus meeting the criterion of spouses under section 1.1 (2)(b)(ii). The appellant's position, as argued by her lawyer at the hearing, is that the ministry must respect the need that persons with disabilities have for assistance from others and the diversity of relationships that can exist to meet that need. She argued that the relationship between the appellant and Mr. S could also be seen as one of brother/sister or friend/caregiver. She submitted that the ministry "cherry picked" the evidence, by not including testimony that tended to show that the two did not have a spousal relationship. In particular, she submitted the transcript of the ministry interview with the social worke\r who emphasized the parental role of Mr. S with the children rather than a spousal relationship with the appellant. She also submitted recent letters from a speech pathologist and from a respite worker who knew them in their home setting and which she argued demonstrated that the two did not present as spouses. With respect to the transcripts of the witness statements, she argued that the ministry's decision did not take into account the time lapse between when the witnesses knew the couple and when the statements were made, that investigators asked leading questions and that the witnesses were making assumptions based on social norms without knowing the true facts. The appellant's counsel also argued that the ministry did not take into account that the appellant and Mr. S resided together as a result of Mr. Swishing to support a person with disabilities. Counsel cited the Thomas case in Falkiner et al. v. Director, Income Maintenance Branch, Court of Appeal for Ontario, [2002) O.J. No. 1771, in which the court overturned a lower court decision confirming a ministry decision that Thomas was in a spousal relationship with another person in accordance with Ontario legislation. "Certainly persons with disabilities are capable of forming spousal relationships and capable of doing so with persons who are not disabled. But the Board should have considered whether Mr. Thomas' disability explained the social and familial aspects of his relationship with Ms. Papizzo, aspects that in another context might well amount to cohabitation. The evidence before the Board suggested that Mr. Thomas needed a caregiver and that he could not live on his own. Either may have provided a plausible alternative explanation for why he and Ms. Papizzo were together all the time. The Board never considered these alternatives. Nor did the Board consider the evidence of the parties themselves, which eloquently described not a spousal relationship but one based on friendship and need." EAAT003(10/06/01)
APPEA I Panel findings The panel will first address the appellant's argument in relation to the Falkiner (Thomas) case. First, while the definition of spouse in the Ontario legislation is similar to that in the EAPWDA, the Ontario legislation refers to "the social and familial aspects of the relationship between the person and the applicant or recipient amount to cohabitation" while the EAPWDA refers not to "cohabitation" but "a marriage-like relationship." In the panel's view, the Ontario decision is distinguishable from this appeal, as the EAPWDA allows for caregiver/friend relationships: it is only when the financial, social and familial aspects of that relationship, and only those aspects, are "marriage-like" that two persons residing together are considered spouses under the legislation. In reviewing the evidence, the panel notes in particular a witness statement to which the ministry's lawyer drew specific attention at the hearing. The statement is from Mr. S's supervisor of 16 years, who stated that she was under the impression that Mr. S was married with children. She stated that she met the appellant on two occasions when Mr. S brought the appellant to a barbecue at a staff member's house and he brought the appellant and the children to the supervisor's mother's memorial service. The supervisor stated that she feels that the children are theirs and has given Mr. S time off work to deal with the daughter's medical issues. Considering this witness statement, and the related evidence concerning Mr. S taking birth-of-child leave and medical leave for the daughter, the panel considers the ministry reasonable in concluding that in one important social area, namely Mr. S's work, the appellant and Mr. S presented as spouses and parents. Considering the other witness statements, the panel's view is that overall they support the ministry's conclusion that the appellant and Mr. S present as a close couple domestically, particularly with respect to parenting. The panel also notes that although at the hearing the witness said he had a policy of maintaining a distance from his tenants, and had no social interactions with any of his tenants, that clearly is not the case with the appellant and her children. The panel therefore finds the ministry reasonably determined that the relationship between the appellant and Mr. S demonstrates a social and familial interdependence consistent with a marriage-like relationship. As the panel has found that the ministry was reasonable in determining that the two criteria in dispute set out in section 1.1 (2)(b) have been met, the panel therefore finds that the ministry reasonably determined that the appellant and Mr. Sare spouses under section 1.1 of the EAPWDA and that as they are spouses who reside together, Mr. S is the appellant's dependant under section 1 (1 )(a) of the EAPWDA. Parental Role under 1(1) of the EAPWDA The ministry argued that Mr. S was a dependant of the appellant as per paragraph (c) of the definition of dependant in section 1 (1) of the EAPWDA. The ministry noted that in 1995, Mr. S took a day off work for the birth of his child and that the date corresponds with the birth date of the appellant's dau ghter. From 1996-2003 Mr. S took 30 days of medical leave from work for a dependent child. The ministry notes that only the children of the appellant live in the home that the appellant shares with Mr. S and that taking time off work to care for a person's child is not consistent with a landlord tenant relationship, but is consistent with a parental relationship. In 2001 Mr. S received a letter addressed to both him and the appellant regarding the medical care of the appellant's daughter. In 2009 the appellant advised the ministry office that Mr. S is the next of kin for her children. In 201 O Mr. S had the a□□ellant's son listed as his son on his Deoendent Beneficiary screen and Health Benefits EAAT003(10/06/01)
Elec t i o ns screen for work. The a p pella n t' s s on' s sch emergency c o ntact . In add i tion, t he appe llant's son de cisions regarding th e son 's dental ca re an d li st ed Mr. S as "le son. The ministry cited multiple w it nesse s who report app ellan t 's children . T he mi n i s te r is satisf ied that this pattern o i ndic a tes a pare n tal rol e for one or more o f t he appella h e an d the appellant resi de toget h e r , Mr. S is there fore M r . S d enied being the father of either c hil d a nd indicated a ppel lan t was to ensu re that her childre n w ere safe m u ch he lp in caring for her chil dren and he tried to fil to ok me dica l leave from work to assist w ith l o ok i n g afte need ed med ica l a tt ention . He also ack nowle dg ed that he so n t o be lis t ed as his son s o t h a t the child c o u ld ha he knew t his w as wr ong, b ut felt a sens e of o b liga tion e spe c ially becau se he th o ught the mi nist r y was no t doing eno ac knowledged th at t he den t a l cl i nic wh ich p r ovided services b e the boy's fath er. He exp lained t hat t he staf f at th the b oy' s fa ther sin ce he was covere d u nd er h is de nt me dica l and school prof es si onals th a t he w as not t he the w i tness s t a tements which reported t hat he presen c hild ren m ust have a s sume d t hat to be the cas e, b ut h father. He s tated he acted as an advo c at e and i nt er chil dr en. Panel Find ings Th e panel ac k nowled g e s that pe ople co m monly ma ke pe o p l e -especia lly whe n t hey sha r e a r esi dence . N a ppellant nor Mr. S denied that Mr. S h ad played a sig children . In t he pa n e l's view M r . S displ aye d a consist fo r t he appellant's children, thu s indicating a p arent al the medi ca l leave he took from work for the bir th of a were ill or r equired m e d ical att ention, i n arranging for the app work as being his son so that the boy could receive dental care at no cost to the appellant, in making decisions about the son's dental treatment, and in being listed in schoo member and emergency contact. Accordingly, the panel concluded that the minist dete rmined that Mr . S h ad in dicated a par ental rol e for the appellant's dependent children and that as he res ides w i th the app ellant he is her dependant under Conclusion The panel has found the ministry reasonably determined that Mr. S resides with the appellant and is a dependant of the appellant, both by indicating a parenta as set out in item (c) of the definition of dependant in section 1( 1) of the EAPWDA, and by meeting the definition of soouse in section 1.1 of the EAPWDA, and is therefore a member of the annellant's EAAT003(10/06/01) I A PPEAL o ol h a s M r . S listed as a f a mil y m e mb e r and 's den tal r ecords indicate that Mr . S made gally re sp onsible " for the appella nt' s e d that M r . S. acted a s a p a re n t towa r d the f beh a viour e stablish e s tha t Mr. S nt's dep enden t children and con clu d es t hat as a de pendent o f the ap pel l a nt. that the assistance he o f f er ed to the and cared for. H e fe lt that the a ppel la n t need ed l the mo st impor t ant gaps. H e explained that h e r the ap pell ant' s ch ild ren whe n t h ey were il l or had arrang e d a t wo r k f or the a p pellant's v e acc ess t o de nt a l b enefits. He expl ai n ed that to loo k after the kids who n eeded h e l p u gh t o suppor t t h e f amily . He t o th e appell ant 's son con s i d ered hi m to e d ental clinic mu st ha ve a ss u m ed that h e w as a l plan. H e s ai d that he al w ays made cle a r to all fa ther of th e c hi l dr e n. Similarly, he a rgu e d t hat t ed himse lf a s t he f a t her of the a pp ell an t's e insisted t hat he h ad not c laime d to b e their medi ary on beh al f of th e app ell an t and her a ssumpt ions ab o ut relat ionshi p s between oneth ele s s, the pan el note d that ne it h er the n i f i c an t role i n caring for the appellant's ent pa ttern of behaviour a ssociated with car ing r ole for t he se children. T his wa s evidenced in child and at times wh en the ap pellan t's children e llant' s son to b e l isted on his re cords a t l records as being a family r y had reasonably section 1 ( 1 ) ( c) o f th e E A PWD A . l role for the appellant 's depe nd e nt children,
family unit. As the appellant had not applied for disability assistance o as require d under section 5 of the EAPWDR, the pane appellan t is not eligible f o r disability as sistance i s reas reasonable applicat io n of th e legisla tion in th e circumstances of the appellant conf i rms t he mi n i stry ' s decision. EAAT003(10/06/01) I APPEAL n behalf o f her entire f a mily unit l finds tha t the ministry's d ecision that the onably s up ported by th e evi dence and is a . The pan el t herefore
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