“The ODSPA (Ontario Disability Support Program Act) recognizes the right of disabled adults to apply in their own right for income support. This is a fundamentally important element of the statute. It furthers one of the program’s underlying purposes: to effectively serve persons with disabilities who need assistance (see s. 1(c) of the ODSPA).
Although Jocelyn lives with her mother and her mother receives child support, Jocelyn has an independent right under the ODSPA and the Regulation to apply for income support. The Director recognized her right to do so because Jocelyn was assessed as an independent adult. Thus, for the purpose of calculating her entitlement to income support, she alone is a “benefit unit”. Her mother is not included in that unit. Characterizing child support paid to her mother as income to Jocelyn is inconsistent with this important element of the statutory scheme. This inconsistency is evident from an examination of the features of the child support payments to Jocelyn’s mother:
• The child support order itself stipulates that the support is paid to Jocelyn’s mother, not to Jocelyn;
• The order does not say how Jocelyn’s mother is to spend the money. Thus, although she voluntarily uses the money for disability related expenses, the order does not require her to do so;
• Jocelyn’s mother is not required to account for how she spends the money;
• Jocelyn’s mother must report the child support as income on her personal income tax return. Jocelyn does not report the payments on her own return;
• The child support payments are tied to Jocelyn’s mother. They end if she dies;
• Jocelyn is not a party to the court order and has no legal right to enforce it.
These features show that, in her mother’s hands, the child support payments are not Jocelyn’s income. Jocelyn has no legal entitlement to them, no ability to access them, and no control over how they are spent. Her mother could use the child support to repair the roof, pay a hydro bill or buy a new television set. Although these expenditures might be said to benefit Jocelyn indirectly, they are not the kind of expenditures that would be characterized as income attributable to Jocelyn under s. 37(1) of the Regulation. They are not payments to her or on her behalf or, at a practical level, even for her benefit.
In short, although the payment of child support is a duty owed to Jocelyn, it does not necessarily follow that all, or even any portion of it can properly be characterized as payments to her or on her behalf or for her benefit. To include child support as income under the Regulation could deprive applicants of disability benefits under the ODSPA, even though none of the child support is used for the applicant’s benefit.
Ontario (Disability Support Program) v. Ansell, 2011 ONCA 309 (CanLII) at 27-30