PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation’s (the ministry) reconsideration decision dated December 24, 2015 which denied the appellant’s request for a shared parenting allowance on the basis that he had not provided a court order demonstrating that he had his children for not less than 40% of each month as required by the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 1(2) and Schedule A, section 4(1). PART D – Relevant Legislation EAPWDA section 1 EAPWDR section 1, 24 and Schedule A, section 4
PART E – Summary of Facts The information before the ministry at the time of reconsideration included the following: Application to Obtain an Order dated June 1, 2015 Shelter Information dated November 15, 2015 Letter from Canada Revenue Agency to the appellant dated November 23, 2015 confirming that the appellant and another individual are both considered primarily responsible for the children’s care and upbringing Letter from the appellant’s ex-spouse dated November 27, 2015 stating that the appellant and she share joint custody with the appellant having the children Fridays, Saturdays and Sundays and taking 50% of the child tax benefit. Court Summary Sheet dated December 7, 2015 Request for Reconsideration dated December 22, 2015 (RFR) in which the appellant states that he takes his children to the dentist and doctor and that they stay with him 80% of the time while their mother attends school and work. Additional Information In his Notice of Appeal dated January 12, 2016 the appellant states that he has a shared parenting agreement that was submitted to the ministry for the reconsideration but as it does not appear to have been considered he will resubmit another copy. The appellant provided a submission, through his advocate, dated January 15, 2016 which included a written submission containing argument, copies of the Reconsideration Decision, applicable legislation, Written Agreement – Family Law Act made February 5, 2015 (“Written Agreement”) and 2015 calendar showing dates that the children spend with the appellant. The ministry also provided a written submission dated February 2, 2016 containing argument, stating that the Written Agreement was not before the ministry at the time of reconsideration and had not been previously submitted. The ministry’s submission states that on the Written Agreement the date of the appellant’s witness was December 22, 2015 but that the witness for the appellant’s ex-spouse did not date the Written Agreement, and it is not clear if the Written Agreement has been filed with the BC Court Registry. The ministry states that it stands by the reconsideration decision. The panel has admitted the Written Agreement and the 2015 calendar contained in the appellant’s submission into evidence as they are in support of information and records that were before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the new information relates to and supports the information previously provided by the appellant regarding his and his former’s spouse’s agreement regarding their shared parenting arrangements for their children as reported in the letter from the appellant’s former spouse. With the consent of both parties, the hearing was conducted as a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act.
PART F – Reasons for Panel Decision The issue on this appeal is whether the ministry’s reconsideration decision denying the appellant’s request for the shared parenting allowance on the basis that he had not provided a court order demonstrating that he had his children for not less than 40% of each month as required by EAPWDR, section 1(2) and Schedule A, section 4(1) was reasonable. The relevant legislation is as follows: EAPWDA Section 1 "dependant", in relation to a person, means anyone who resides with the person and who (a) is the spouse of the person, (b) is a dependent child of the person, or (c) indicates a parental role for the person's dependent child; "dependent child", with respect to a parent, means a child, other than a child who is 18 years of age and is a person with disabilities, who resides in the parent's place of residence for more than 50% of each month and relies on that parent for the necessities of life, and includes a child in circumstances prescribed under subsection (2); EAPWDR 1 (2) For the purposes of the Act and this regulation, if a child resides with each parent for 50% of each month under (a) an order of a court in British Columbia (b) an order that is recognized by and deemed to be an order of a court in British Columbia, or (c) an agreement filed in a court in British Columbia the child is a dependent child of the parent who is designated in writing by both parents. Section 24 – Amount of disability assistance 24 Disability assistance may be provided to or for a family unit, for a calendar month, in an amount that is not more than (a) the amount determined under Schedule A, minus (b) the family unit's net income determined under Schedule B. Schedule A – Disability Assistance Rates Maximum amount of disability assistance before deduction of net income 1 (1) Subject to this section and sections 3 and 6 to 9 of this Schedule, the amount of disability assistance
referred to in section 24 (a) [amount of disability assistance] of this regulation is the sum of (B.C. Reg. 197/2012) (a) the monthly support allowance under section 2 of this Schedule for a family unit matching the family unit of the applicant or recipient, plus (b) the shelter allowance calculated under sections 4 and 5 of this Schedule. (2) Despite subsection (1), disability assistance may not be provided in respect of a dependent child if support for that child is provided under section 8 (2) or 93 (1) (g) (ii) of the Child, Family and Community Service Act. (B.C. Reg. 197/2012) Monthly Shelter Allowance 4 (1) For the purposes of this section: “family unit” includes a child who is not a dependent child and who resides in the parent’s place of residence for not less than 40% of each month, under the terms of an order or an agreement referred to in section 1 (2) of this regulation; ******* The appellant’s position is that the information provided, particularly the letter from CRA, the letter from his former spouse and the Written Agreement, demonstrate that he has his children not less than 40% of the time and qualifies for the shared parenting allowance. The appellant’s position is that the Written Agreement had been submitted for reconsideration but had become detached from the reconsideration file. The appellant’s position is that his request is further supported by the 2015 calendar that demonstrates that the appellant had the children 165 days out of 365 days, accounting for 45% of the parenting time. The ministry’s position is that in December 2013 the ministry received a letter from a social worker indicating that the appellant and his ex-spouse had shared custody (50%) of their two children so the shared parenting allowance was added to his file. On November 27, 2015 the ministry received the letter from the appellant’s ex-spouse indicating that they share joint custody of the children, that they share the child tax benefit and that the appellant has the children Fridays, Saturdays, and Sundays. On December 3, 2015 the ministry worker noted that they had not been able to find a joint custody agreement or a shared parenting agreement from the Family Justice Centre and it was determined that the appellant was not eligible for the shared parenting allowance. In its submission, the ministry’s position is that the Written Agreement subsequently provided was not provided previously, that the appellant’s ex-spouse’s witness has not dated the Written Agreement and it is not clear if the Written Agreement has been filed with the BC Court Registry. Panel Decision
While the appellant has provided the Written Agreement indicating that he has his children with him for not less than 40% of the time, the Written Agreement is not fully witnessed and it does not appear to have been filed with the BC Court Registry as required by EAPWDR section 1(2)(c). Accordingly, the panel finds that the ministry was reasonable in determining that the appellant had not provided a court order confirming that his children reside with him for not less than 40% of the time or that he has his children for more than 50% of the time as required by EAPWDR section 1(2) and Schedule A, section 4(1). Conclusion The panel acknowledges that the appellant’s ex-spouse appears to support the appellant’s request and that the Written Agreement and 2015 calendar indicate that the appellant has his children not less than 40% of the time. However, as the Written Agreement is not properly witnessed and it is not clear if it has been filed with the BC Court Registry, the panel finds that the ministry’s reconsideration decision determining that it was not clear if the Written Agreement meets the requirements of EAPWDR section 4(1) and EAPWDR section 1(2) was reasonably supported by the evidence and a reasonable application of the legislation in the circumstances of the appellant. The panel therefore confirms the ministry’s decision.
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