Ontario Disability Support Program Income Support Directives

Transcription

1 Ontario Disability Support Program Income Support Directives 5.15 Spousal and Child Support Summary of Policy If a member of the benefit unit does not meet a condition of eligibility, income support can be refused, reduced, cancelled or suspended. If money is due to a member of the benefit unit and such money would be treated as income, the Director may require as a condition of eligibility that income support be reimbursed when such funds become payable. If the Director is not satisfied that a member of the benefit unit has made reasonable efforts to obtain a financial resource to which he/she is entitled, the Director may reduce income support or determine that the person is not eligible for income support. Legislative Authority Sections 8(1), (2), 9(1), 47(1) and (2) of the Ontario Disability Support Program Act, 1997 Sections 11(1), 13, 37, 43(1)9 and 9.1 of the Ontario Disability Support Program General Regulation Summary of Directive This directive provides direction on the treatment of cases where child or spousal support may be available to applicants/recipients. This directive also outlines: the Family Responsibility Office s role related to child and spousal support; how to treat child support payments if they are being applied to expenses for disability-related items or services or education or training expenses that are not and will not be otherwise reimbursed; the treatment of child support for an adult disabled child who is eligible for ODSP in his/her own right; how to treat post-secondary education tuition for a dependent adult paid by a non-custodial parent; where it may be appropriate for support action to be deferred; the treatment of mortgage payments for a matrimonial home where the applicant/recipient is/is not residing in the home; Page 1 of 18

2 the effective date of an Assignment where a recipient has transferred to ODSP from Ontario Works; and the treatment of legal fees incurred to obtain retroactive support payments. Intent of Policy To ensure that an applicant/recipient continues to be eligible as long as he/she is making efforts to obtain child or spousal support to which he/she or his/her dependants may be entitled. To allow the assignment of support to the Minister in cases where a recipient is entitled to receive child/spousal support, but such payments are not being made. Application of Policy Pursuit of Spousal and Child Support In Relation to Eligibility for ODSP An ODSP applicant/recipient must make reasonable efforts to obtain compensation or realize any financial resource to which he/she or his/her dependant may be entitled. The Director must be satisfied that a person is taking action, where appropriate, to obtain support payments. Eligibility does not depend on the actual receipt of support payments, but on the efforts being made to obtain support. Efforts being made may include attending court appointments and providing the ODSP office with current information. ODSP income support may be denied or reduced if the person is not making reasonable efforts to obtain support unless the requirement to pursue support has been waived. If income support is reduced, the reduction should be equivalent to the amount of support deemed to be potentially available to the applicant. Situations of Family Violence A grace period of three months shall be granted to applicants/recipients who have fled their homes because of violent situations. In these circumstances, income support will be granted or continued for a period of three months without requiring the person to pursue joint financial resources, including support that may be owing. Applicants/recipients should pursue funds held in a joint bank account, unless efforts to obtain these funds would put the applicant/recipient at risk. Individual assets or income of the applicant/recipient will be considered when determining eligibility. Waiver of Applicant s/recipient s Obligation to Pursue Support Page 2 of 18

3 In certain circumstances, it may be appropriate to waive or defer the requirement to pursue support. The pursuit of support may be waived permanently in the following situations: the whereabouts of the absent parent or spouse cannot be located after a search and there is no contact for an extended period of time; paternity cannot be determined; or the absent parent or spouse is deceased. The pursuit of support may be waived temporarily in the following situations: the absent parent or spouse is in a non-reciprocating state or country (verification is required); the absent parent or spouse has no ability to provide support, verification is required (e.g. a student, an inmate); the applicant/recipient cannot attend court for medical reasons; there is family violence (emotional or physical) that can be verified (e.g. by police, doctor); or other special circumstances. In cases where the address or the location of the absent parent or spouse is not known, ODSP staff should advise the applicant/recipient that it is his/her responsibility to make reasonable efforts to pursue support. Applicants/recipients are required to advise ODSP staff of the whereabouts of the absent parent or spouse if they become known to them. The waiver period should reflect the circumstances of the case, and is subject to review, either at the end of the waiver period, or at the next file review, whichever is earliest. ODSP staff must approve the waiver and a written decision must be provided explaining the reasons for the waiver. Where a waiver is granted, the applicant/recipient should be advised in writing of the waiver and that he/she is responsible for advising ODSP staff if circumstances change. Deferral of Support Support action may be deferred when an applicant or recipient has made an effort to meet his or her obligation to pursue support, but further action is required by a third party (e.g. awaiting a Legal Aid referral). In this circumstance, an applicant or recipient does not have his or her obligation to pursue support waived. These individuals have met their obligation, but further action on their part is deferred, pending other activities by third parties, such as Legal Aid. The recipient is responsible for notifying his or her caseworker of any change in his or her circumstances. Page 3 of 18

4 Determining the Legal Obligation to Support To determine if an absent parent or spouse has an obligation to support the applicant/recipient and/or any dependent children under the Family Law Act (FLA) or the Divorce Act, the following factors are to be considered: the marital status of the applicant/recipient; the length of time since the applicant/recipient has been deserted/separated; the absent person is a natural parent who has an obligation to support the applicant s/recipient s dependant(s); the absent person has demonstrated a settled intention to treat the applicant s/recipient s child as his/her own (e.g. the applicant/recipient has cohabited with the absent person, and the absent person has demonstrated an intention to treat the child as his/her own); and if there is sufficient information to identify the putative father of the applicant s/recipient s child born out of wedlock, particularly if paternity is in dispute. If the applicant/recipient was separated from the absent spouse for more than two years before January 1, 2004, an action or application for an Order for Support of a spouse cannot be brought under the FLA. If the applicant/recipient and the absent spouse were not separated for two years on January 1, 2004 or the applicant/recipient and the absent spouse separated after January 1, 2004, then an action or an application for an Order for Support of a spouse can be brought at any time. An application regarding support for the dependant child(ren) can be brought at any time. In disputed paternity cases, there must be some certainty that the absent parent is, in fact, the father of the child before the applicant/recipient is expected to pursue support. For example, under the Children s Law Reform Act, there is a presumption of paternity where: the alleged father was married to the mother of the child at the time of the child s birth; the alleged father was married to the mother of the child, but that marriage was terminated by death, divorce or was annulled within 300 days before the child s birth; the alleged father married the mother of the child after the child s birth and acknowledged that he is the natural father; Page 4 of 18

5 the alleged father was cohabiting with the mother of the child in a relationship of some permanence at the time of the child s birth or the child is born within 300 days after they ceased to cohabit; the alleged father has certified the child's birth, as the child's father, under the Vital Statistics Act or a similar Act; or the alleged father has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. If none of these events are present, an interview should be conducted with the applicant/recipient to determine if there is consistency in the details concerning the birth of the child. Form 2212, Declaration of Support/Maintenance, must be completed by ODSP staff on each and every absent person who has been determined to have an obligation to support the applicant/recipient and/or child(ren). In completing this form, it is essential for ODSP staff to advise the applicant/recipient of the importance and obligation of pursuing support, and of the consequences if he/she does not meet this requirement. Adequacy of Support As a condition of eligibility, applicants/recipients are expected to provide all necessary information and supporting documentation as evidence that they have made or are making every reasonable effort to obtain all support available to them. Provision for support in a court order, oral contract or domestic contract is acceptable if the support payment is adequate and/or in accordance with the Child Support Guidelines. All court orders for child support made under the Divorce Act after May 1, 1997 or the FLA after December 1, 1997 must be made in accordance with the Child Support Guidelines. The Child Support Guidelines: include support tables which are used to assist parties and the court to arrive at the child support amount based on the income of the support payor and the number of children involved; and provide a means to determine whether support should be decreased due to hardship, by comparing the payor s and applicant s/recipient s respective household standards of living, or if additional special expenses should be paid on top of the table amount by the payor. The nature of the custody order or arrangements may also affect the amount which is ordered. All domestic contracts (new and varied) made on or after December 1, 1997 must be reviewed by ODSP staff to ensure that the amount is not lower than the Child Support Page 5 of 18

6 Guidelines amount. In cases where the amount of child support is $50.00 lower than the table amount set out in the Child Support Guidelines, the applicant/recipient must be advised that, as a condition of eligibility, he or she is obligated to pursue all income to which he/she is entitled. ODSP staff are cautioned that simply referring to the chart without considering all aspects of the Child Support Guidelines is not appropriate, as it may result in a lower amount of support than would otherwise be awarded. Where support is considered satisfactory but is in default, an affidavit or statement made by the applicant/recipient that payments are not being received must be on file. The applicant/recipient is then expected to take the necessary steps to have the court order/domestic contract enforced. Necessary Steps: Domestic Contracts The necessary steps that should be taken by an applicant/recipient to have a domestic contract enforced include: filing the domestic contract with the court; filing the domestic contract with the Family Responsibility Office (FRO) by completing a Registration Package; and filing a Statement of Arrears with the FRO. An order may need to be re-filed with the FRO when it is an out-of-province order or an order previously withdrawn from FRO enforcement. In addition, the applicant/recipient should complete a filing package which contains information about the payor (e.g. name, birth date, Social Insurance Number, address, employment information) to assist the FRO to enforce the domestic contract. The applicant/recipient should also complete a Statement of Arrears that sets out the support due and the support paid from the date of the court order until the date the order is actually filed with the FRO. The Registration Package and Statement of Arrears are accessible on the FRO s website at The form may be completed on-line or may be printed and completed by hand. Support orders/domestic contracts should be reviewed at the time of the information update to determine if the payor s financial circumstances have significantly improved. Changes in circumstances may include increases to the payor's income due to new employment or a substantial windfall or decrease in expenses. In cases where the parent or spouse may be in a position to contribute an increased level of support, action must be taken by the applicant/recipient to obtain this support. In cases where a support order/domestic contract contains provisions for a cost of living increase, the support order/domestic contract should be reviewed on the anniversary date to ensure that the increase has been applied. Page 6 of 18

7 The Role of the Family Responsibility Office The FRO is a division of the Ministry of Community and Social Services and operates under the authority of the Family Responsibility and Support Arrears Enforcement Act, The FRO receives every support order made by a court in Ontario and enforces the amounts owed under the order. The FRO has the legal authority to collect court-ordered support payments and arrears of support and to take enforcement action against those who do not meet their family responsibilities. The FRO s role is to enforce court orders for child and spousal support by ensuring that support payments flow from payors to recipients. It also enforces private written domestic contracts such as separation agreements, marriage contracts, cohabitation agreements, paternity agreements and family arbitration agreements. These types of domestic contracts must first be filed with the Ontario Court of Justice or the Superior Court of Justice (Family Court) before they can be enforced by the FRO. It is important to note that the FRO only enforces those provisions of an order or domestic contract dealing with support. The FRO does not become involved in child custody or access issues. For general inquiries about payment information, the Customer Service Unit of the FRO may be reached at (416) or toll-free at For specific enforcement information, the Enforcement Call Centre of the FRO may be reached at (416) or toll-free at Termination or Reduction of Child Support Enforcement upon the Termination of the Support Obligation for One or More Children The FRO has discretion under the Family Responsibility and Support Arrears Enforcement Act, 1996, to reduce or terminate the amount of support enforced where one or more children ceases to be eligible for support. Orders Made Without Reference to the Child Support Guidelines If child support is provided per child, the FRO may reduce or terminate the enforcement of the child support order or domestic contract only where the parties agree in writing that a terminating event has occurred with respect to a child or children. Additionally, if the recipient fails to respond to the FRO within 20 days, the Director of the FRO may exercise discretion to reduce or terminate enforcement of the support. Example: The order for child support states that support is to be paid in the amount of $150 per month per child for three children. One of the children completes his/her post- Page 7 of 18

8 secondary education and the parents/parties agree that he/she is no longer eligible for child support. The FRO may exercise its discretion to enforce support for just the two children who remain eligible for child support and the amount enforced is reduced from $450 per month to $300 per month. Global Orders Made With Reference to the Child Support Guidelines If the child support was determined in accordance with the Tables under the Child Support Guidelines, the FRO may reduce or terminate the enforcement of the child support order or domestic contract only where the parties agree in writing that a terminating event has occurred with respect to a child or children. Additionally, the order must state the number of children and the global amount of the support. Example: An order for support may be $780/month for two children where the payor s income is $51,775/year. Income 1 child 2 children 3 children 4 children 5 children 6+ children $51,700 $478 $778 $1019 $1203 $1352 $1478 $51,800 $479 $780 $1020 $1206 $1355 $1481 When the obligation for one child ends, caseworkers should reduce the amount according to the Child Support Guidelines, e.g., the ongoing obligation for the remaining child will be $479/month (not $390/month or half of the support order). Ideally, this should be done after the applicant/recipient has advised the FRO of the change in family size as the FRO has the authority to reduce the amount of support enforced on an ongoing basis under the Family Responsibility and Support Arrears Enforcement Act, Global Orders Made Prior to the Implementation of the Child Support Guidelines A global order provides that all support for the dependent children is included in one amount to be paid on a periodic basis. A spouse may also be included in a global order. The FRO has no discretion to reduce the amount of support enforced under this type of order or domestic contract. The FRO may terminate enforcement when none of the beneficiaries of the order continue to be eligible for support. Page 8 of 18

9 Example: Support for a spouse and three dependent children is $400/month (rather than $100/month per person). Global orders for support continues to accrue at $400/month until the order is changed by the court, regardless of changes within that family unit (Note: a caseworker cannot change a global order for a spouse and children, even if the children are no longer included in the benefit unit). "Order for Support" - Application by Applicants/Recipients In cases where an application for an Order for Support may be feasible, ODSP staff should refer applicants/recipients to the court only if the following conditions can be met: the whereabouts of the person who is required to provide support are known; and there is an indication that the person is able to provide support, (e.g. is working). All applicants/recipients pursuing support must be advised that they cannot consent to an amount lower than the amount in the Child Support Guidelines. Amendments to the FLA include judicial safeguards against consent orders on initial applications for child support or on variations of child support being made at less than the amount made in accordance with the Child Support Guidelines where the child is supported by public funds. Assistance should be given to applicants/recipients in completing necessary forms, including a referral to Legal Aid, if required. Resolution In or Out of Court Support arrangements can be made out of court. However, where court action is necessary, only members of the bar can participate in support actions to be heard in a court higher than the Ontario Court of Justice. In Ontario, the Superior Court of Justice has higher standing than the Ontario Court of Justice. Duty Counsel are not available in the Superior Court of Justice, but are available in the Superior Court of Justice (Family) courts. Interjurisdictional Support Orders The Interjurisdictional Support Orders Act, 2002 (ISO Act) applies to the registration of support orders made in reciprocating jurisdictions for enforcement in Ontario and the Page 9 of 18

10 establishment of and change of a support order when the applicant/recipient lives in Ontario and the absent parent or spouse lives in a reciprocating jurisdiction. A reciprocating jurisdiction is another province, territory, state or country that has entered into a formal arrangement with Ontario to enforce each other s support orders. Reciprocating jurisdictions must have support laws that are similar to those in Ontario. The ISO Act is provincial legislation that applies to support orders made under the FLA. It does not apply to support orders made under the Divorce Act which is federal legislation or where both parties live in Ontario. To apply to register, establish or change a support order where the absent parent or spouse lives in a reciprocating jurisdiction, a standard form must be used by the applicant/recipient which can be accessed through the courts, Family Law Information Centres and Legal Aid Offices or by contacting the Interjurisdictional Support Orders Unit of the FRO at (416) or toll-free at An up-to-date list of reciprocating jurisdictions can be accessed on e-laws by viewing Ontario Regulation 53/03, Reciprocating Jurisdictions under the ISO Act. Assignment/Direction An Assignment or Direction form should be completed in the following situations: the support provision is in arrears for at least one complete calendar month and is filed with the FRO; the support payments are irregular and it appears that this situation is likely to continue; or there are extenuating circumstances (e.g. harassment by the absent parent or spouse who threatens to stop payment if the applicant/recipient does not comply with his/her wishes). An Assignment is taken when a court order is in arrears. A Direction is completed when a Domestic Contract is in arrears. All Domestic Contracts must be filed with the courts prior to completing a Direction. It is the applicant s/recipient s responsibility to ensure that this filing is done. Assignments should be cancelled or ended in the following situations: there are no arrears owing to the assignee; support obligations are regularly being met; or the person is no longer an ODSP recipient. When an Assignment/Direction is no longer appropriate, a Cancellation of Assignment/Direction Form should be completed and sent to the FRO. Page 10 of 18

11 When an ODSP case is terminated, the file must be reviewed for any existing Assignment(s)/Direction(s) to ensure that the Ministry does not continue to receive monies owing to the recipient. When an Assignment/Direction is no longer appropriate, a Cancellation of Assignment/Direction Form should be completed and sent to the FRO. Effective Date of an Assignment where a Recipient is Referred from Ontario Works Where an ODSP case has been referred from Ontario Works, the effective date of an Assignment is the ODSP date of grant (first day of ODSP eligibility). The cancellation date of the Ontario Works Assignment is the last day of the month prior to the date of ODSP grant. For example, if an ongoing Ontario Works participant s application for ODSP is completed on October 17, 2011 and the participant s first day of ODSP eligibility is November 1, 2011, the ODSP Assignment effective date is November 1, The Ontario Works Assignment must be cancelled effective October 31, This ensures that the ODSP Assignment starts on the same day that a case becomes eligible for ODSP income support and there is no overlap in the Assignment periods. This policy also applies where a case is granted retroactively. Ontario Works office staff must cancel the support Assignment with the correct date, as noted in the example above, in order for the FRO to process the new ODSP support assignment. Ontario Works is eligible for the FRO support reimbursement up to and including the month prior to the first month of eligibility for ODSP. ODSP is eligible for the FRO support reimbursement as of the first month of eligibility for ODSP, including cases where Ontario Works benefits were provided in that month. Voluntary Withdrawal of a Court Order/Domestic Contract from the Family Responsibility Office Section 16 of the Family Responsibility and Support Arrears Enforcement Act, 1996 provides for the voluntary withdrawal of a support order or domestic contract and any related support deduction order from enforcement by the FRO. A support order, domestic contract or support deduction order may be withdrawn at any time (i.e. even if the Director of the FRO is enforcing the order) subject to a few conditions: A withdrawal must always be in writing. The preferred method is to use the Notice of Withdrawal form which is accessible on the FRO s website. However, a letter is sufficient. The withdrawal must include the signatures of both the payor and the recipient if the payor is in compliance with payment obligations. That is, payments have Page 11 of 18

12 been made consistently and in full and the total arrears do not exceed $50 in the 12 months prior to the withdrawal. The withdrawal may be unilateral by the recipient alone if the payor is not in compliance with payment obligations. If this is the case, the Notice by Support Recipient of Unilateral Withdrawal form is completed which is accessible on the FRO s website. It is important to note that if the order states that the support order and the support deduction order cannot be withdrawn, any such written notice will be of no effect. Where the withdrawal is made, the FRO stops all enforcement action. For example: Writs are withdrawn Support Deduction Notices are revoked Default proceedings are stayed Driver s licence suspensions are terminated Federal licence suspensions are terminated (e.g. passport) Garnishments are withdrawn If, at a later date, the parties choose to re-file with the FRO (e.g. relationship breaks down and payments stop flowing as between them), they may do so but there is a refiling fee charged to each of them of $50 (total $100). A Statement of Arrears would be required from the recipient if (s)he wants arrears enforced for the period prior to the refiling date as no accruals will be registered until the first payment comes due after the re-filing date. The withdrawal forms are accessible on the FRO s website at The forms may be completed online or may be printed and completed by hand. If there is a current Assignment, written consent to withdraw must also be obtained from the assignee (the Ministry of Community and Social Services/ODSP or the Municipal Delivery Agent). If there is a past Assignment and arrears are still owing to the Ministry of Community and Social Services, the Director of the FRO will continue to enforce any arrears owed on account of the support order and the support deduction order even if the payor and recipient have withdrawn. If the applicant/recipient is considering withdrawing an Order or domestic contract from enforcement by the FRO, he/she may contact the FRO at (416) or toll-free at Terminated Cases where Reimbursements are Owing to the Recipient In cases where the Assignment/Direction was not cancelled on a terminated case, a reimbursement to the recipient may be required. In such cases, ODSP staff should Page 12 of 18

13 complete the Cancellation of Assignment/Direction Form with the appropriate cancellation date. Staff must also complete the Request for Reimbursement to Recipient Form. On terminated cases where a recipient is owed support monies as the Assignment/Direction was not cancelled and the recipient has an existing overpayment, the recipient can request voluntarily that the reimbursement be applied to the overpayment. It should be noted that there is no obligation for the recipient to apply any of the support monies owed to the overpayment. If the recipient asks about applying the support monies owed to the overpayment, it must be clear that she/he chooses to do so voluntarily. Cases where the Assigned Support Order is in Excess of the Recipient s Monthly Income Support The recipient must be reimbursed in a month where the FRO has collected monies on an assigned case and the amount exceeds the recipient s monthly income support. These cases will require monitoring and may require periodic reimbursement to the recipient. If the amount collected by the FRO is consistently more than the recipient s income support, ODSP staff should review the case to determine if there is any impact on eligibility. Treatment of Matrimonial Home and Mortgage Payments where the Applicant/Recipient Resides in the Home Issues relating to matrimonial homes are unique under family law. Where the applicant/recipient is living in the matrimonial home and has a court order which requires the payor as part of a support order to pay the mortgage on the matrimonial home, an Assignment can be completed if the support provision is in arrears for at least one complete calendar month. The court order should only be registered with the FRO if in addition to a direct payment of the mortgage to the recipient, there is also a provision for spousal or child support payments. If the court order only provides for mortgage payments and there is no provision for child or spousal support, then the court order does not need to be registered with the FRO. The mortgage provision must be within the context of a support order for the FRO to be able to enforce it. In addition, the FRO does not have the authority to enforce an order if it is payable to a third party (for example if the payor is required to pay the mortgage directly to a bank), as the FRO cannot enforce an order that only contains mortgage payment provisions. Page 13 of 18

14 In the circumstance where the applicant/recipient is living in the matrimonial home and has a domestic contract which requires the payor as part of the domestic contract to pay the mortgage on the matrimonial home, a Direction can be completed if the support provision is in arrears for at least one complete calendar month. The domestic contract should only be registered with the court and with the FRO if in addition to a direct payment of the mortgage to the recipient, there is also a provision for spousal or child support payments. If the domestic contract only provides for mortgage payments and there is no provision for child or spousal support, then the domestic contract should not be registered with the FRO, as the FRO cannot only enforce the mortgage provision as the mortgage provision must be within the context of a support order for the FRO to be able to enforce it. Note: If the payor has stopped making the mortgage payments, the income charge to the recipient would cease. An agreement to reimburse should be completed by the recipient whether or not an Assignment and Direction has been completed. Treatment of Matrimonial Home and Mortgage Payments where the Applicant/Recipient No Longer Resides in the Home Where the applicant/recipient has a shared interest in a matrimonial home, an obligation to pay the mortgage may exist. The amount of the mortgage payments will usually be divided equally between the spouses. Where the applicant s/recipient s former spouse is paying the full mortgage amount, 50% of this may be deemed to be a payment made on behalf of the applicant/recipient and would therefore be considered income for ODSP purposes. In some cases, the applicant/recipient may not have an obligation to pay the mortgage on the property. For example, there is a court order or minutes of settlement which indicate that the obligation to pay the mortgage is solely with the former spouse remaining in the home. Where there is no obligation on the recipient to pay the mortgage, the payments would not be considered income as they are not payments made on behalf of or for the benefit of the recipient. In addition, there may be cases of family violence where the applicant/recipient has fled a jointly owned home, and the remaining former spouse continues with the mortgage payments. Such an applicant/recipient may have little or no recourse to absolve himself or herself of the obligation to pay the mortgage payments and pursuing equalization may not be an option. As such, the family violence policy in the context of pursuing support would be applicable. The applicant s/recipient s interest in the matrimonial home is an asset and may be exempt if, in the circumstances, the applicant/recipient is making reasonable efforts in the circumstances to sell the property or divest themselves of their share. The matrimonial property will usually be divided between the parties (known under family Page 14 of 18

15 law as equalization ), and when this happens, the applicant/recipient will no longer have an interest in the home. Child Support Arrears Owing to the Government Arrears can accumulate on cases assigned to the Minister if the payor is not making regular support payments. The government is committed to ensuring that arrears owing to it are protected. To assist the government in recovering outstanding support arrears, the Court rules and the Family Law Act include the right of the assignee Minister to be notified of and to participate in court proceedings affecting their arrears. The Ministry s Legal Services Branch is responsible for protecting arrears owing to the government when efforts are made by payors to rescind them. Legal Services Branch must be consulted immediately if court documents related to support are delivered to a local office, and the documents must be forwarded to the Legal Services Branch. Community Resources Available to Assist Applicants/Recipients in Obtaining Support The following resources may be available to assist applicants/recipients in obtaining support, depending on the issue and the applicant s/recipient s location: duty counsel for motions to change support (in the Ontario Court of Justice and the Superior Court of Justice (Family)); legal aid (in cases with complex custody/access/property and support issues); Family Law Information Centres (in all Ontario Courts of Justice and Superior Courts of Justice (Family)); or, community legal clinics (where available). Post-Secondary Education Tuition for a Dependent Adult Paid by a Non-Custodial Parent If there is a support obligation on the part of the non-custodial parent and he or she is paying tuition as part of that support obligation, then the payment of the post-secondary education tuition by a non-custodial parent for a dependent adult who is in the benefit unit would be considered income, and would be deducted dollar for dollar from ODSP income support. In the absence of a support order or agreement, the non-custodial parent may also be paying tuition in lieu of support. As long as a support obligation exists, the tuition paid is considered income. Page 15 of 18

16 If no support obligation exists or if the support obligation is being met and the tuition is being paid in addition to support, the tuition may be treated as a gift or voluntary payment and exempt up to $6,000 per benefit unit member for any 12 month period. Recipients are required to report all income received or pending, when it was or is to be received and the period for which it was or is intended. In general, child support is deducted in the month intended. It follows that if the tuition is being paid where there is a support obligation, then it should be deducted in the month intended. The tuition income should therefore be pro-rated over the study period. Adult Disabled Child with a Child Support Provision in Place for his/her Benefit Child support paid to an adult disabled child s parent on behalf of or for the benefit of that child cannot automatically be considered income to an adult disabled child. An adult disabled child refers to an individual who is 18 or older, eligible for ODSP in his/her own right, and has a support provision in place for his/her benefit. Two-step Approach A two-step approach is to be applied to child support payments paid to a parent of an adult disabled child. First, a determination must be made as to whether the parent gives the child support payments directly to the adult disabled child or uses the payments for the benefit of the adult disabled child. Second, if the child support payments are given directly to the adult disabled child or used for the benefit of the adult disabled child, the child support is charged as income unless an income exemption applies. Child Support Payments Not Used for Adult Disabled Child Parent Not on Social Assistance Where the adult disabled child s parent is not on social assistance and the child support payments are not given directly to the child or used for the benefit of the adult disabled child, then the child support payments would be considered the parent s income and not the child s income. The child support payments would not impact the adult disabled child s ODSP entitlement. The adult disabled child or his/her ODSP trustee would be required to complete Declaration Form 0311 if the child support payments are not being given directly to the adult disabled child or used for his/her benefit. Page 16 of 18

17 Child Support Payments Not Used for Adult Disabled Child Parent on Social Assistance Child support which is being paid to a parent who is either an Ontario Works or ODSP recipient would be treated as income against the parent s entitlement and deducted dollar for dollar if the money is not given directly to the adult disabled child or used for the benefit of the adult disabled child. The adult disabled child or his/her ODSP trustee would be required to complete Declaration Form 0311 if the child support payments are not being given directly to the adult disabled child or used for his/her benefit. Child Support Payments Used for Adult Disabled Child Child support paid to an adult disabled child s parent (regardless of whether he/she is also on social assistance) that is given directly to the adult disabled child or used for the child s benefit would be considered income and deducted dollar for dollar against the adult disabled child s income support, unless an income exemption applies (e.g., under ODSP - voluntary payments to a maximum of $6000 in a 12 month period, payments made towards disability-related items and services, the parent gives the adult disabled child the child support payments for the purpose of making a contribution to a Registered Disability Savings Plan). The adult disabled child or his/her ODSP trustee must complete Monthly Report Forms to track how the child support payments have been spent. The adult disabled child or his/her ODSP trustee must submit the tracking forms to the adult disabled child s caseworker annually. Verification of Disability-Related Items and Services Child support payments may also be considered exempt as income if they are part of a court order and are being applied to expenses for disability-related items or services or education or training expenses that are approved by the Director and that are not and will not be otherwise reimbursed. In this circumstance, the recipient or an ODSP trustee who is managing the income support of a recipient should verify that the amount set out in the court order relating to the disability-related expenses have been applied to disability-related items and services that are not and will not be otherwise reimbursed. The manner in which the recipient or an ODSP trustee should verify these expenses is by completing and filing a Monthly Report Form that shows that the disability-related items or services that have been paid for related to the disability of the child in question are not and will not be otherwise reimbursed. Page 17 of 18

18 In the case where an ODSP trustee is verifying the disability-related expenses, the ODSP trustee should be notified that the above-noted annual report must be completed and filed in addition to the annual report that is required to be filed that sets out how OSDP income support has been spent on behalf of the ODSP recipient. Legal Costs Incurred to Obtain Retroactive Support Payments Where a lawyer is retained to assist an applicant or recipient to obtain retroactive support payments, and, as a result, the applicant or recipient receives a lump sum amount, ODSP will allow the legal fees to be paid from the gross amount, and will consider the net amount as income. In cases where the Ministry expects to recover income support paid to a recipient, recovery can only be made from funds that are considered income [in other words, from the net amount]. If the net amount is sufficient to cover the income support paid, the Ministry expects full payment. If the net amount is not sufficient to cover the income support paid to the recipient, the Ministry accepts the entire net amount in satisfaction of its claim. Given this, no overpayment is established. If the Ministry receives the entire gross amount by way of assignment and the recipient has incurred legal costs to obtain the support payments, the ODSP local office should return an amount equivalent to the legal costs to the recipient. Hyperlinks associated with this Policy Directive Related Directives: 5.1 Definition and Treatment of Income 5.2 Assignment of Retroactive Income 5.11 Post-Secondary Education 10.2 Trustees Bulletin: Page 18 of 18