Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0332 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated August 10, 2023, in which the ministry found the appellant is not eligible for disability assistance as a sole recipient because his family unit includes a spouse (referred to in this decision as “X”) as defined in section 1.1 of the Employment and Assistance for Persons with Disabilities Act (“the Act”).

The ministry determined that X is the appellant’s dependent under section 1 of the Act. The ministry said that under section 5 of the Employment and Assistance for Disabilities Regulation (“the Regulation”), the appellant must apply for disability assistance on behalf of his family unit which includes X.

Part D – Relevant Legislation The ministry based the reconsideration decision on the following legislation:

Employment and Assistance for Persons with Disabilities Act - sections 1, 1.1, and 3

Employment and Assistance for Persons with Disabilities Regulation – section 5

The full text of the legislation is in the Appendix at the end of the decision.

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Appeal Number 2023-0332 Part E – Summary of Facts The evidence and documentation at the reconsideration consisted of:

1. Information from the ministry’s record of decision indicating that: The appellant’s disability assistance file was re-opened in 2006. On March 20, 2023, the appellant submitted a letter indicating that he is in a relationship with X. The appellant further indicated that X is his common-law spouse, and he did not want to add X to his file because he has his own rent and bills. The ministry reviewed the appellant’s file, including two tenancy agreements and a letter from a landlord. These showed that the appellant has resided with X and the appellant’s family member (referred to in this decision as “Y”) since 2019. On June 23, 2023, the appellant submitted a letter along with his residential tenancy agreement. The appellant stated that he and X, who were originally roommates, had started dating. On June 26, 2023, the appellant submitted a recent telephone bill in X’s name that included cell phone services for the appellant and X and Y. The appellant submitted a hydro bill in his name for the current address. On June 28, 2023, the ministry interviewed the appellant by phone for a “dependency relationship assessment.” The ministry advised of the meaning of “spouse” in the legislation. The appellant indicated that he had resided with X continuously for more than 12 months but was unsure when they began residing together. The appellant said that he is responsible for the full amount of the phone and hydro bill, and neither X nor Y contributed to these bills because they agreed that the appellant will pay the entire bill. The appellant said that although not legally married, he is in a common law relationship and considers X to be his spouse. On June 28, 2023, the ministry determined that the appellant’s relationship with X is a “dependency relationship” in which X meets all the criteria for “spouse” under the Act. The ministry informed the appellant that X must be added to his file to meet the continuing conditions of eligibility for disability assistance under section 3 of the Act. On July 7, 2023, the appellant submitted a Request for reconsideration. The ministry noted that no further information was provided. On August 10, 2023, the ministry completed its review of the Request for reconsideration and maintained that the appellant is not eligible for disability assistance as a sole recipient.

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Appeal Number 2023-0332 2. The Request for Reconsideration, signed by the appellant on July 20, 2023.

3. A typed letter dated June 23, 2021, addressed to the ministry and signed by the appellant and X. The letter states that the appellant and X were originally roommates and started dating approximately a year and a half ago. The letter states that they are still sharing a residence and the appellant is responsible for: Rent: $750 per month (a second copy of this letter was submitted to the ministry, with the amount for rent changed to $900 per month). Utilities: $150 Food and personal expenses: $300

The letter states that the appellant and X maintain their finances separately. X has her own bank account that only she has access to. X “is not responsible for any financial assistance to [the appellant or Y].” The appellant and X “file their own unrelated taxes.”

4. A telephone bill in X’s name dated June 5, 2023, showing separate charges for 3 different phone numbers, with a monthly charge of $55 - $59 for each phone. The total current charges were $192.71 with a previous balance of $191.94 also due. An invoice in X’s name dated June 3, 2023, was attached to the bill.

5. Hydro bills in the appellant’s name dated June 14 and March 3, 2023, showing current charges and an overdue amount. The current charges for a 2-month period on June 14, 2023, are $87.89. The overdue amount was $1,028.73.

6. A Residential Tenancy Agreement signed by the landlord and 2 tenants (the appellant and X) in January 2023. The tenancy began on February 15, 2023, with rent of $2,995 per month.

7. A letter from a landlord dated September 17, 2019, stating that X is the registered tenant who lives with the appellant, Y, and another member of the appellant’s family (referred to in this decision as “Z”) from September 1, 2019.

8. A ministry Shelter Information form, verified by the landlord on September 18, 2019. The form indicates that 3 adults and 1 minor are sharing the residence starting September 1, 2019. The appellant’s portion of the rent is $1,250 per month.

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Additional evidence

Appeal Number 2023-0332

Appeal submission

Following the reconsideration decision, the appellant submitted a Notice of Appeal with a hand-written submission dated August 21, 2023. In the Reasons for Appeal, the appellant stated that he and his common law partner agreed (before they started living together) that the appellant would contribute $900 (per month) toward rent and food, and that he would pay the telephone bill. In addition, the appellant said that he needs ongoing treatment for a traumatic brain injury.

Witness testimony

The appellant attended the hearing with X who provided additional evidence as a witness. X stated that: She is not responsible for the appellant’s bills regardless of whether he lives with her or own his own. The appellant moved in with her as a roommate because it was impossible for him to live on his limited finances. The appellant‘s money only covered the rent “in a cheap mouse-infested place” and was not enough to pay bills and help his family member, Z who was struggling with a serious illness. She asked the appellant to share her place, to give him a decent place to live and help him take care of Z. X explained that she provided emotional support and she and the appellant grew close and started dating. The appellant suffered a severe brain injury before they got together. This causes the appellant to forget appointments and struggle to remember things. If the appellant doesn’t pay his share of the bills, he would have to move out as they made an agreement with separate finial responsibilities. She has a higher income than the appellant but might only help him in out in an emergency.

In response to a question from the ministry about whether the appellant is fully responsible for the hydro bill, X explained that she and the appellant and Y are each responsible for one third of all bills. X explained that the dollar amount reported to the ministry (total of $950 per month from the appellant for rent and a portion of the bills, versus $1,150 and $1,350 in the letters to the ministry) fluctuates month to month “but is basically one third each.”

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Appeal Number 2023-0332 When asked about the telephone bill, X explained that the phone bill continued to be in her name because she gets a good rate. The appellant and Y are each responsible for their share. This is the same arrangement she had with roommates in the past.

X explained that she and the appellant have separate bank accounts; the appellant gives her cash for his share of the bills as he has difficulty with e-transfers and technology; and that they already explained their financial arrangement in the letter they both signed.

X said that they also gave a package with their bank statements and recent bills to an advocate who told them it had been sent to the ministry. X reported that the advocate is away on vacation and could not attend the hearing. X said that they also gave the ministry bills from vendors that she doesn’t use any more (she now has a new telephone provider). X said that the appellant has always been very transparent with the ministry, providing everything that they asked for.

When asked about social and familial relationships, X explained that initially, friends/family treated them as roommates and knew them as friends. They now know the appellant and X as a couple because of the dating relationship “but not committed as a married couple.”

X added that she has never told the ministry that she and X are a common law couple. X explained that the appellant may have used the term “common law” because legally the relationship may be considered a common law relationship based on living together for a certain number of months. X said that “common law” does not apply in her case no matter how long they have lived together because if she chooses not to marry the appellant is not her spouse.

When asked about the letter to the ministry (that was signed by the appellant and X), X explained that Y’s name is not on the letter because she has a separate agreement with Y. X explained that the appellant may have called the letter a “pre-nuptial agreement” when he got tongue-tied due to his brain injury. However, the purpose of the letter is “a protective agreement” so that the appellant could not claim half of X’s assets if they were viewed as “common law” under family law.

Appellant’s testimony

The appellant stated that: He is not entitled to any of X’s money. He is responsible for a portion of the bills, “$900 per month plus a small amount for utilities.” The appellant said that he, and Y who lives with them, each pays their own share. He suffered a traumatic brain injury in 2015, which added to his previous physical

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Appeal Number 2023-0332 injuries. A family member paid the appellant’s bills so that he would not be homeless when he got out of the hospital. He still receives rehabilitation for cognitive skills. He gets tongue-tied when under stress and had difficulty expressing himself when discussing his living arrangement with the ministry. His family member, Z recently died under tragic circumstances, resulting in PTSD and depression. He is taking medication for depression as well as for his brain injury. He started living with X to share bills and get support. X added that she and Y were also deeply affected by Z’s death because it happened at the residence that they shared. X said that she is also taking anti-depressant medication because of the tragedy. The ministry did two separate reviews of his living arrangement. When he was living with X at the previous address the ministry was satisfied that they paid separate bills and were not sharing income. Three months ago, after they moved to the current address, the ministry did another review and said they were sharing things. The hydro bill went into arrears because he had to use his money to pay a dental bill and other unexpected expenses. X did not pay the arrears; instead, a family member gave him $1,300 for the outstanding hydro bill.

In response to questions about the ministry’s reviews of the living arrangement, the appellant said he and X gave the ministry the same information for both reviews and he does not don’t why the ministry found he and x to be in a marriage-like relationship at second review, but not the first one.

In reply, the ministry explained that it is obligated to conduct a review when new information comes to light. The ministry confirmed that it conducted reviews in November 2021, and June 2023 based on the tenancy agreements and move to the new residence. The ministry acknowledged that the appellant was not found to be living in a marriage-like relationship at the 2021 review.

Admissibility of additional evidence

The panel finds that the hand-written submission from the appellant and oral testimony at the hearing add clarity and detail around the nature of the relationship and sharing of bills. The oral testimony details the appellant’s disability and additional stress and grief from the loss of Z, clarifying what he told ministry in its reviews of the living arrangement.

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Appeal Number 2023-0332 The ministry said it had no objections to the additional evidence. The panel finds that the written and oral submissions are admissible under section 22(4) of the Employment and Assistance Act as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

Ministry’s testimony

The ministry did not submit new evidence but provided argument. The panel will consider the arguments of both parties in Part F – Reasons.

Part F – Reasons for Panel Decision

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Appeal Number 2023-0332 The issue on appeal is whether the ministry’s determination that the appellant is not eligible for disability assistance as a sole recipient because his family unit includes a dependent spouse (as defined in the Act) is reasonably supported by the evidence or a reasonable application of the legislation in the circumstances of the appellant. Was the ministry reasonable to find that the appellant must apply for disability assistance on behalf of his family unit which includes X?

Arguments

Appellant

The appellant’s position is that the ministry’s decision is unreasonable because he and X have separate finances and are each responsible for their own share of the rent and bills. The appellant acknowledges that he and X are dating and that he said they were “common law” but argues that they do not have social and familial inter-dependence consistent with a marriage-like relationship.

X argued that the appellant “is a grown man; it is not up to her to take care of him…Just because they are sharing a roof, it makes no sense that the ministry says she has to cover his expenses.” X expressed that the ministry “treated [the appellant] disrespectfully; harassed him about the living arrangement and did not care about the loss of Z.”

X said that she “never signed up to be [the appellant’s] ‘sugar mama’ and just because we are dating, he still has to pay his share of the rent and bills.” X added that she and the appellant are seen by others as a “dating relationship that could end at any time.”

Ministry’s position at the reconsideration

The ministry provided its initial position in the reconsideration decision based on an assessment of the relationship under paragraphs (a), (b), and (c) of section 1.1(1) of the Act. The ministry concluded that the appellant and X are “spouses” under section 1.1(1)(b).

The ministry argued that the appellant’s relationship with X does not meet the criteria for “spouse” under section 1.1(1)(a) of the Act because there was no evidence of a marriage, and “you do not declare to the ministry that you are in a marriage-like relationship.”

In its conclusion (Decision section of the reconsideration record), the ministry argued that the appellant is “not eligible for disability assistance as a sole recipient because he said

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Appeal Number 2023-0332 that he is in a common law relationship with X. Therefore “your relationship meets the definition of ‘spouse’ as per section 1.1(1)(b) of the EAPWD Act.”

Regarding section 1.1(1)(c) of the Act, the ministry’s position was that the appellant is in a “dependency relationship” with X because all three criteria for the meaning of “spouse” under section 1.1(1)(c) were met based on the documents provided and the appellant’s statements during the ministry review. The ministry argued that: The appellant has resided with X “for at least the previous 12 consecutive months” as evidenced by the tenancy agreements and the appellant’s statement that he has resided with X for more than 12 months, the relationship “demonstrates financial dependence or inter-dependence consistent with a marriage-like relationship” because the appellant said he was responsible for paying the entire telephone and hydro bill, and the relationship “demonstrates “social and familial inter-dependence consistent with a marriage-like relationship” because the appellant submitted a letter “confirming the relationship” and said that he considers X to be his “common-law spouse.”

Ministry’s position at the hearing

In response to questions from the panel, the ministry expanded the conclusion that was reached in the reconsideration decision. The ministry stated that the reconsideration officer relied on both sections of the Act [1.1(1)(b) and 1.1(1)(c)] to find that the appellant is in a marriage-like relationship with X.

The ministry acknowledged that given the additional evidence, section 1.1(1)(b) of the Act may not be applicable because X has not “declared to the minister” that she and the appellant are in a marriage-like relationship. The ministry acknowledged that only the appellant referred to the relationship as “common-law.” The ministry added that given the clarification presented at the hearing, the ministry would be open to reviewing whether the relationship demonstrates the financial and social/familial dependence/inter-dependence that the definition of “spouse” requires under section 1.1(1)(c).

The ministry said that it would be willing to “reassess the case and not stand by the reconsideration” based on new information that clarifies the financial arrangement. The ministry said that it would require “the letter that was provided [for the reconsideration] plus confirmation that they are no longer sharing bills and have no financial dependence on each other.” The ministry said that it would need a “letter and a bank statement from each party to show a clear differentiation of bill payments.”

Analysis and panel’s decision

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Appeal Number 2023-0332

Employment and Assistance for Persons with Disabilities Act, section 1.1 – meaning of “spouse”

Under section 1.1 of the Act, two persons are “spouses” for the purposes of the legislation if one of the following three requirements are met:

Section 1.1(1)(a) – two persons are “spouses” if they are married to each other. The ministry reasonably determined that the appellant and X are not spouses under this section because they are not married. However, in its discussion of section 1.1(1)(a) in the reconsideration decision, the ministry also noted that the appellant did not “declare to the ministry that you are in a marriage-like relationship.”

While the ministry’s decision was reasonable based on the appellant and X not being married, a declaration of a “marriage-like relationship” is not required under section 1.1(1)(a) of the Act. The panel notes that this section of the Act only applies to a legal marriage.

Section 1.1(1)(b) – they declare to the minister that they are in a marriage-like relationship:

The panel finds that it was not reasonable for the ministry to conclude that the appellant and X are “spouses” under this section as it requires both individuals (the word “they” is used collectively) to tell the ministry that they are in a marriage-like relationship. In its conclusion the ministry indicated that the appellant and X are “spouses” under section 1.1(1)(b) of the Act because the appellant declared that X is his common-law spouse. However, the ministry acknowledged at the hearing that X has not told the ministry that she and the appellant are “common-law.”

Both the appellant and X indicated that they may be “common-law” based on how long they have lived together but maintained that they do not have a marriage-like commitment. The appellant called X his common-law spouse, but in the panel’s view the appellant did not intend “common-law” to mean a marriage-like relationship as defined by the Act.

The appellant provided a reasonable explanation for his use of “common-law.” He explained the difficulties he has in expressing his situation to the ministry due to his brain injury. He specifically indicated that his repeated use of “common-law” (including in the recent Notice of Appeal) was because it is a familiar legal term based on living together at the same address for more than 12 months. The appellant testified that he gets “tongue-

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tied” when expressing himself.

Appeal Number 2023-0332

The letter signed by the appellant and X on June 23, 2021 (resubmitted to the ministry in 2023 with an updated amount for rent) supports the position that the appellant and X did not declare they are “common-law” in the sense of a marriage-like relationship. In that letter, the appellant and X stated that they are dating and have separate financial obligations. In the more recent Notice of Appeal submission (August 21, 2023), the appellant again outlined his separate contribution towards rent and bills.

The panel therefore finds that the ministry’s decision that the appellant and X are “spouses” under section 1.1(1)(b) of the Act is not a reasonable application of the legislation in the circumstances of the appellant. The appellant and X did not “declare to the minister that they are in a marriage-like relationship” as required by section 1.1(1)(b) of the Act.

Section 1.1(1)(c) – residing together for at least the previous 12 consecutive months and demonstrating financial dependence/inter-dependence, social inter-dependence, and familial inter-dependence.

Residing together for at least 12 months

The appellant does not dispute that he has resided with X for at least 12 months in a row. The ministry reasonably determined that the time requirement under section 1.1(1)(c) of the Act was met.

However, this section also requires the minister to be satisfied that the relationship demonstrates financial dependence/interdependence as well as social and familial inter­dependence consistent with a marriage-like relationship. The panel acknowledges that the ministry has discretion over those findings but notes that the ministry’s exercise of discretion must reasonably be based on evidence.