Ontario Works Directives

Transcription

1 Ontario Works Directives 5.5: Family Support Legislative Authority Sections 13, 14, 23, 59 and 69 of the Act. Sections 13(1), 15, 62(2) and 65.1 of Regulation 134/98. Sections 33(3) and 34(3) and (3.1) of the Family Law Act. Sections 2(1), 4(1) and 7 of Regulation 114/99 (Courts of Justice Act, Family Law Rules). Audit Requirements Random file reviews are completed to ensure that documentation related to support is on file, including: o the Declaration of Support and Maintenance form (#2212); o statement of Live Birth (if required); o any court orders for support; o affidavit of verbal agreement; and/or o voluntary agreement for support. Random file reviews are completed on Maintenance Enforcement Computerized Accounting (MECA) records as required. Documentation is on file to support waiver decisions, including decisions to continue or extend the waiver period, clearly showing the information necessary to support the decision has been received, assessed, and verified. Waivers are reviewed when the waiver period expires. Follow-ups are completed and documented. A Declaration of Support and Maintenance form (#2212) has been completed for every absent person who has a support obligation. Assignments and directions are completed where support is not in pay or pay is irregular. Support orders and agreements reflect the table rate in the Federal Child Support Guidelines. If support is in pay, adequacy and compliance with the Child Support Guidelines are reviewed every 24 months, or earlier if indications are that finances have changed as a result of a financial eligibility review or through information provided by the recipient. A new form 2212 is complete when adequacy of support is reviewed. All assignments and directions are cancelled as appropriate. Page 1 of 10

2 Application of Policy As a condition of eligibility, applicants and recipients are, with certain exceptions, required to make reasonable efforts to pursue child or spousal support to which he/she, or a dependent, may be entitled. Eligibility for financial assistance does not depend on the actual receipt of support payments, but on the efforts being made to obtain support. The Administrator should be satisfied that an applicant or recipient is taking action, where appropriate, to obtain support payments. The Ontario Works Act, 1997 and its regulations require applicants and recipients to pursue any income that may be available to them; however, it does not require applicants or recipients to resolve other legal issues, such as custody or access, which may arise during the course of obtaining payment for support. Where there are issues in addition to support, referral to duty counsel or to Legal Aid Ontario may be appropriate. Prior to an applicant or recipient being expected to pursue support from another person, there must be evidence that the person has an obligation to support the applicant, recipient or dependent. When it has been determined that the person has an obligation to support, a Declaration of Support and Maintenance Form is completed. If reasonable efforts are not being made to pursue support, assistance may be denied or reduced. The reduction of assistance would be equal to the amount of the support that would have been available, had reasonable efforts been made to pursue it. Assistance is not reduced if the requirement to pursue support is waived, or if the failure to make reasonable efforts is the result of factors outside the recipient s control. In addition, individuals at risk of domestic violence are not expected to pursue support and may be granted a waiver. An Administrator may designate Family Support Workers (FSWs) to assist applicants, recipients and dependents in taking whatever action is necessary to pursue financial support from persons with a legal obligation to provide it. A support provision in the form of a court order, paternity agreement or domestic contract is acceptable as evidence as long as the support payment is adequate in accordance with all aspects of the Child Support Guidelines. If support is in pay, adequacy and compliance with the Child Support Guidelines are reviewed every 24 months or earlier if finances have changed. If support provisions are not in place, the FSW should assist the parties in Page 2 of 10

3 negotiating a support agreement as this process tends to be less adversarial, and reduces administrative costs. Processes for pursuing support should be initiated within 120 days of grant. These processes/activities may include: referral of the case to an FSW to review the merits of the case, commencing the negotiation of a voluntary agreement, establishing waivers, conducting searches, and/or initiating court proceedings. Administrators should ensure that where possible support issues are addressed for recipients where a decision regarding eligibility for the Ontario Disability Support Program (ODSP) is pending. Delivery agents are required to defend their own arrears and Ministry arrears, including negotiating settlements where appropriate with due diligence. Assignments and directions are completed if support is not in pay or is irregular. If it becomes apparent that the payor is meeting the support obligation on a regular basis and the support is likely to remain in pay, all assignments and directions are cancelled. If the file is closed or transferred to a new delivery agent, assignments and directions are cancelled (see Directive 5.2: Assignments for more information). Waivers There are certain circumstances under which it is not feasible for an applicant or recipient to pursue support. Depending on the nature of these circumstances, the requirement to pursue support may be waived on a temporary or permanent basis. The pursuit of support may be temporarily waived for a period of time based on the individual merits of the case. Generally, a temporary waiver period is approved for three to 12 months. However, an extended temporary waiver period may be approved where the Administrator is satisfied that a longer period is reasonable based on the circumstances of the case (e.g., the respondent is in receipt of ODSP, the respondent is incarcerated, etc.). The length of the waiver and the rationale for the waiver must be clearly explained and documented on file, and circumstances should be clearly documented and reviewed at the end of the waiver period. The following are examples of when temporary waivers could be applied: if the absent parent is in a non-reciprocating state; if the applicant or recipient cannot attend court for medical reasons; if the applicant or recipient indicates or provides evidence of domestic Page 3 of 10

4 violence or a restraining order is in effect against the other parent; if the absent parent is incarcerated (Note: in these cases, a temporary waiver should be extended until one month prior to the scheduled release date); where the payor has been deported and there is, in the opinion of the Administrator, a reasonable prospect of receiving support; or where the whereabouts of the absent parent are unknown and a search is being conducted. The pursuit of support may be permanently waived in the following situations: the absent parent is deceased; paternity cannot be determined (Note: where the recipient indicates that a child s paternity is unknown, the consistency of the recipient s explanation and her efforts to ascertain the father s identity are considerations in deciding if a waiver should apply); the whereabouts of the absent parent cannot be located after a reasonable search period (e.g., two years); or the Administrator is satisfied, based on the evidence available, that there is an ongoing risk of domestic violence and it would not be in the best interests of the applicant or participant to pursue support. Where a waiver is approved, the recipient must be advised in writing of the approved waiver period and informed that he/she is responsible for notifying their caseworker or FSW of any change in their circumstances. Approval of Waivers It is the decision of the Administrator to delegate authority for the approval of temporary and permanent waivers. Deferral of Support There are certain circumstances where support action may be deferred. Deferrals do not waive the obligation to pursue support. Support action may be deferred when an applicant/recipient has made an effort to meet his/her obligation to pursue support but further action is required by a third party, such as a Family Support Worker or Legal Aid. The recipient is responsible for notifying their caseworker of any change in their circumstances. Determining if a Legal Obligation to Provide Support Exists To determine if another person has an obligation to support the applicant or recipient under the Family Law Act and/or any dependent children under the Page 4 of 10

5 Children s Law Reform Act, the following factors are considered: DNA test results (if available); the spousal status of the applicant or recipient; the length of time the applicant or recipient and other person cohabited; the length of time since the applicant or recipient was deserted or separated; whether the absent person is a natural parent who has an obligation to support the applicant or recipient's dependent; whether the absent person who is not a natural parent has demonstrated a settled intention to treat the applicant or recipient's child as a child of his/her own (see Directive 3.10: Temporary Care Assistance for more information); and whether or not there is sufficient information to identify the father of an applicant or recipient's child born outside of marriage, particularly if paternity is uncertain. Presumption of Paternity In the Children s Law Reform Act, there is a presumption of a paternity where: the person was married to the mother of the child at the time of the birth of the child; the person was married to the mother of the child by a marriage that was terminated by death or was annulled within 300 days before the birth of the child; the person marries the mother of the child after the birth of the child and acknowledges that he is the natural father; the person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit; the person has certified the child s birth, as the child s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada; or the person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. Other factors to consider would include: if the couple lived together; if the couple were dating regularly at the time the child was conceived; and if the person was living with the applicant or participant at the time the child was born. Declaration of Support or Maintenance Form (#2212) A Declaration of Support or Maintenance form (#2212) must be completed for Page 5 of 10

6 each person who has been determined to have an obligation to support the applicant or recipient and/or any dependent child, and whenever the support amount is reviewed for adequacy against the Child Support Guidelines. Reviews should take place at a minimum of every 24 months except: where permanent waivers have been applied; and where a file has been transferred to another delivery agent where a permanent waiver has been applied. Adequacy of Support All court orders for child support are made in accordance with the following guidelines: a support table is 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; whether support should be decreased due to hardship (by comparing the payor s and applicant or recipient s respective household standards of living), or if additional special expenses should be paid on top of the table amount by the payor; and the child support amount may also be affected by the nature of the custody order or arrangements. All agreements (new and changed) should be reviewed to ensure that the amount is not lower than what is calculated in accordance with the guidelines. In cases where the amount of child support is at least $50 lower than the guidelines, the applicant or recipient is informed and advised that, as a condition of eligibility, he/she is obligated to pursue all income to which they or their dependents are entitled. Outdated orders should be reviewed and where necessary, an application to change support should be considered if there is evidence that a higher support order would be made under the Child Support Guidelines. Change in Payor s Circumstance Support orders and agreements are reviewed to determine if the payor s financial circumstances have significantly changed. Changes in circumstances may include increases to the payor s income by way of new employment. In cases where the person may be in a position to contribute an increased amount of support, action should be taken to obtain this support. Where the terms of the agreement or court order appear inadequate from this review, attempts should be made to have the other party complete a financial assessment. Page 6 of 10

7 If the terms of agreement or court order are inadequate, the applicant or recipient is asked to re-negotiate with the payor or to pursue an adequate amount through court action (i.e., to apply for an order for support or to change the existing order) with the assistance of an FSW, if required. "Order for Support" Application by Recipient It is normal practice for FSWs to assist applicants or recipients in making an application to the Ontario Court of Justice or the Family Court of the Superior Court of Justice for an order for support. An applicant or recipient is referred to the court to make an application for an order for support only if the following conditions can be met: the whereabouts of the payor are known; and there is some indication that they are able to provide support. All applicants or recipients pursuing support with or without the assistance of an FSW must be advised that they cannot consent to an amount lower than what is calculated in accordance with the Child Support Guidelines. Where court action is necessary, only lawyers can participate in support actions to be heard in the Superior Court of Justice. In the Ontario Court of Justice and the Family Court of the Superior Court of Justice, a party may be represented by a non-lawyer, but only if the court gives permission in advance. Duty counsel may be available in the Ontario Court of Justice and the Family Court of the Superior Court of Justice. Support arrangements can also be made out of court and FSWs should ensure that this option is fully explored with an applicant or recipient. "Order for Support" Application by Delivery Agent A delivery agent may apply for an order for support on behalf of the applicant or recipient. However, it is recommended that the delivery agent only initiate support action where the applicant or recipient is unable to do so for the following reasons: emotional and physical health; where violence, threats, or other forms of intimidation are likely to result as a consequence of the applicant or recipient taking action (however, a delivery agent should not proceed with an application for an order of support if there is any possibility of putting the applicant or recipient in further danger of domestic violence); where unreasonable expenses would be incurred by the applicant or recipient Page 7 of 10

8 (e.g., meals, transportation costs, child care, etc.), particularly in areas where distances are very great; or other situations in which circumstances are considered to be such that the applicant or recipient is unable to initiate the action. If a recipient exits Ontario Works, the order for support should be changed so that the support recipient is the parent, not the delivery agent. Support in Default Where the support amount is considered satisfactory but is in default, an affidavit or statement made by the applicant or the recipient indicating that the payments are not being received should be kept on file. Where there is an agreement for support as part of a support arrangement, and it is in default, the applicant or recipient is required to register the agreement for support with the court and file it with the Family Responsibility Office (FRO). Alternatively, if there is a change in circumstances and the payor is willing to cooperate, the parties may enter into an amended agreement to continue to provide an agreed upon amount of support without registering the amended agreement with FRO. Where the support amount, in a court order for support or an agreement for support, is not being paid in full or on a regular basis, the recipient should complete an assignment or direction form. This allows the recipient to receive full financial assistance from Ontario Works until the payments are regular or paid in full (see Directive 5.2: Assignments for more information). Assignment Form (#0403) An Assignment form (#0403) is completed where support orders are not in pay, or arrears are owed for a period during which a recipient is in receipt of assistance. An assignment of a support order should be cancelled once the support is in regular pay or if the file is transferred from one delivery agent to another or the client is no longer receiving assistance from Ontario Works. Direction Form (#0251) A Direction form (#0251) is completed for support agreements where support is not in pay, or arrears are owed for a period the applicant or recipient is in receipt of assistance. The direction should be cancelled once support is in regular pay. An Assignment or Direction form is completed in the following situations: the support provision is in arrears for at least one complete calendar month and is filed with FRO; Page 8 of 10

9 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 payor who threatens to stop payment if the applicant or recipient does not comply with their wishes). There is a legal obligation to notify the payor of the assignment. An assignment or direction is usually served on the payor where an address is known. However, for cases with extenuating circumstances, such as verified evidence of potential abuse or harm to the recipient or dependents, the payor may not need to be notified. A determination of the need to notify the payor should be made on a case-by-case basis. Cancellation of Assignment or Direction Form (#0044) A Cancellation of Assignment or Direction form (#0044) is completed and faxed to the FRO in the following situations: support obligations are regularly being met; the recipient is no longer in receipt of financial assistance; or when the recipient s file has been transferred to a different delivery agent. A Cancellation of Assignment or Direction form must be completed in terminated cases to ensure that the person receives the support payments they are entitled to and to avoid the need for future reimbursements to former recipients. Section 16 of the Family Responsibility and Support Arrears Enforcement Act, 1996, provides for the voluntary withdrawal of support orders (SOs) and support deduction orders (SDOs) from enforcement by FRO. In order to withdraw, the parties must submit a written notice signed by each party. However, if the order states that the order and support deduction order cannot be withdrawn, any such written notice will be of no effect. During the period an order is assigned, the order and support deduction order cannot be withdrawn unless by the assignee or with the assignee s consent. If there is a past assignment and arrears are still owing to the Ministry or delivery agent, the Director of FRO can continue to enforce the order and the support deduction order even if the payor and participant have withdrawn. Assigned Support Order Exceeds Social Assistance Assignments should be monitored on a monthly basis and reimbursement made to the recipient for payments received in a month where the amount of the support payment exceeds social assistance. Page 9 of 10

10 Transfer of Assets in Lieu of Support Payments If a transfer of assets (or a transfer of equity in a shared asset) is accepted by a recipient in lieu of support payments, these assets (or interest in a shared asset) should be treated in the same manner as all other assets an applicant or recipient may possess when determining their eligibly and budgetary requirements. Support Arrears Owing to the Delivery Agent and the Ministry To assist assignees in recovering outstanding support arrears, the assignee has the right to be notified of and to participate in court proceedings affecting their arrears. Court documents are required to be served on assignees if the relief requested in the court proceeding affects the assignee s interest. This includes proceedings to vary, rescind, suspend or enforce an order. Delivery agents are expected to defend their own arrears and Ministry arrears on Ontario Works cases, including negotiation of settlements where appropriate, with due diligence. Temporary Care Assistance Cases If the whereabouts of the parents are not known, staff must verify if the natural parent(s) are deceased and review the availability of any income or assets from the parents estate. If the whereabouts of the parents are known, support must be pursued. If the whereabouts of the parents are known, and if a private agreement for support exists, it may be a satisfactory alternative to court action. The agreement must provide the child with a regular income which appears reasonable and appropriate with respect to the parent s ability to pay. The adult providing temporary care can be appointed by a court to commence an order for support and represent a child. An adult providing temporary care is not automatically a party to a proceeding, but may be included. The order for support may be brought against either or both natural parents. A child may commence the order for support in their own name although it is preferred that the adult providing temporary care commence the order for support on behalf of the child. Where a court order for support exists and is in default, the delivery agent must file an Assignment or Direction form with the FRO, if one has not already been filed. Page 10 of 10