Canadian Social Research Links

The Ontario welfare "Spouse-in-the-House" rule
The Falkiner Case

Updated February 10, 2012

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The whole issue of welfare rules concerning cohabitation or "spouse in the house" gained some public exposure when the courts ruled in favour of Sandra Falkiner in May 2002. Scroll down this page you're reading to "The Falkiner Case" for background information about the case.

NEW

Here's the plain language version of the cohabitation policy for people applying for or in receipt of financial assistance under the Ontario Works Program and the Ontario Disability Support Program.

Do you live with an adult who might be seen as your spouse? (PDF file - 219K)
November 2011
This booklet deals with the rule that spouses who live together must qualify for social assistance as a couple. It explains how Ontario Works and the Ontario Disability Support Program decide whether two adults who live together are spouses. Topics include applying for assistance while living with someone, being on assistance when someone moves in, living separately from a spouse, and being falsely alleged to be living with someone. There is also a section on how to appeal if assistance is refused or cut off.

NOTE: the link above is a static link whose content is updated from time to time. If the date on the PDF file that opens when you click the link is more recent than November 2011, it's because I haven't updated the reference; the correct date is the one that appears on the PDF document.

Source:
CLEO (Community Legal Education Ontario)
http://www.cleo.on.ca/english/index.htm

[ Version française du site:
Éducation juridique communautaire Ontario

http://www.cleo.on.ca/francais/pubf/onpubf/onlinef.htm

NEW

Current (2012) spouse-in-the-house policy in Ontario social assistance regulation:

'Spouse', in relation to an applicant or recipient, means
(...)
(d) a person who has been residing in the same dwelling place as the applicant or recipient for a period of at least three months, if,
--- (i) the extent of the social and familial aspects of the relationship between the two persons is consistent with cohabitation, and
--- (ii) the extent of the financial support provided by one person to the other or the degree of financial interdependence between the two persons is consistent with cohabitation."
[Excerpt from the "Definitions" section in front of the regs in each case]
Source:
(1) Ontario Works Regulation
(2) Ontario Disability Support Program Regulation

----------------------------------------------------------------------

And here's the old OW policy (again, the wording is the same for ODSP):

Conservative Government Ontario Works Co-residency Policy, 1995-2004 (PDF file - 52K, 15 pages)
September 2001
[NOTE: this superseded policy is no longer on the OW policy directives web page.
It is presented here for information only. ]

Source:
Ontario Works Policy Directives

The Falkiner Case

Background

Shortly after its election win in the summer of 1995, the Conservative Party of Ontario amended a welfare policy that allowed clients of the system up to three years of cohabitation before an economic interdependence was deemed to exist. The pre-1995 policy had been implemented to harmonize the welfare legislation (the Family Benefits Act and the General Welfare Assistance Act) with the Ontario Family Law Act , and anyone who was cohabiting in this manner was expected to make a financial contribution to the household, like a boarder, and the household's welfare entitlement was reduced accordingly. Advocacy groups were quite supportive of this rule, because it gave single mothers an opportunity to form new relationships without jeopardizing their welfare status.

The Harris government changed this welfare rule in October 1995 so that economic interdependence is deemed to exist as soon as there is evidence of cohabitation. According to social advocates, this is a strong disincentive for single mothers to form a relationship and to break free from welfare, because the policy is a strong warning to anyone who might consider entering into a serious relationship with a single mother on welfare: "if we find out that you've spent even one night with a single mother on welfare, you're on the hook financially for her and her children the same as if you were married." Thousands of single-parent families in Ontario were affected by the new policy, and there's still a conflict with the FLA, which continues to use three years as the limit before interdependence is deemed to exist.

Beyond the legislative contradictions, there's also a question of the Equality Guarantee in the Charter. This is the basis of the appeal that was launched by a number of single mothers who were affected by the new policy (on behalf of thousands of others who were similarly affected). Below, you'll find links to the Court's decision, along with other related information.


The Official Court Record :

Falkiner v. Director, Income Maintenance Branch (May 13, 2002) - 28 pages

Source:
Court of Appeal for Ontario

---

Welfare recipients win Charter rights : 'Spouse in the house' rule strips women of dignity, court says
May 14, 2002
National Post
[NOTE : This story is no longer available on the free National Post site]
"Ontario's highest court has ruled that citizens on welfare cannot be discriminated against just because they collect social assistance, a decision likely to have major implications for welfare policies across the country. The Ontario Court of Appeal ruled yesterday that welfare recipients form a protected category under the equality provisions of the Charter of Rights and Freedoms, just like sex or race."

---

Case Note on Falkiner v Ontario:
The Concept of "Spousal Dependency"

Isthatlegal.ca (Ontario)
The purpose of the Isthatlegal.ca website is to provide, in one convenient and generally accessible on-line location, detailed and thorough legal guides to areas of Ontario and Canadian law of general importance to the economically vulnerable in our society, and to their advocates. All users should ensure that they meet the Terms of Use of the site.


June 2002 Fraser Forum - The Fraser Institute
This issue of the Fraser Forum focuses on BC Native land claims, big government, medical monopoly, Crown Corporations, the federal child support guidelines and a few other topics, but it also includes a one-page article entitled "Welfare Reform Jeopardized? How will a recent ruling in Ontario affect welfare reform across Canada?"
An excerpt:
"Defining the receipt of welfare as immutable, and thus welfare recipients as a protected or analogous group under section 15 of the Charter, has the potential to undo current and potential welfare reforms that are aimed at establishing welfare as temporary assistance available in the transition to employment. Welfare reforms in the US, such as those under the Personal Responsibility and Work Opportunity Reconciliation Act, have proven very successful in reducing the number of American welfare recipients. Their numbers have declined from a high of 14.2 million in 1994 (5.5 percent of the population) to 5.8 million in June 2000 (2.1 percent of the population). It would be truly unfortunate if such effective tools of welfare reform were unavailable in Canada because of poor judicial reasoning."
Source : The Fraser Institute

Download and read the June 2002 issue of the Fraser Forum, then read a commentary on the welfare reform article by Charter expert Vincent Calderhead of the Charter Committee on Poverty Issues

Critique by Vincent Calderhead of the Fraser Forum article : (June 18, 2002)
"Far from Falkiner representing 'poor judicial reasoning', it would seem that Chris Schafer [author of the article] and the Fraser Institute are the ones who are out of touch with Canadian constitutionalism."
[NOTE : this link takes you further down this page]


Interveners :
Canadian Civil Liberties Association
Women's Legal Education and Action Fund (LEAF)

Related Link :

LEAF'S Factum on Falkiner
Reprinted on the website of the Disabled Women's Network of Ontario (DAWN) with the permission of the Women's Legal Education and Action Fund


Dénouement...

Busting Welfare : I took the Tories' spouse-in-the-house law to court and won
By Sandy Falkiner-Budgell
June 6, 2002
"I didn't believe it was right for a government to determine whether I was allowed to try to form a relationship or not. I didn't believe it was right for a government to penalize my child by taking away his ability to receive medication because his mother wanted to begin a relationship."
Source : NOW Magazine (Toronto)


...or perhaps not.

Ontario to appeal Court decision and amend definition of spouse
News Release
May 27, 2002
Ministry of Community, Family and Children's Services
"QUEEN'S PARK — Ontario's Minister of Community, Family and Children's Services, Brenda Elliott and Attorney General David Young announced today that the government will seek leave to appeal the recent court decision concerning the definition of spouse to the Supreme Court of Canada. The government will also take steps to amend the definition of spouse for people who receive social assistance from Ontario Works and the Ontario Disability Support Program. The court's findings concern a government welfare policy that seeks to treat couples who are living in a common-law relationship the same as married couples when they apply for welfare."
NOTE: these links are dead - I just kept the text here FYI...

--------------------------------------------

On March 20, 2003, the Supreme Court of Canada granted leave for the Ontario Government to appeal the decision of the Court of Appeal for Ontario in the Sandra Falkiner "spouse-in-the-house" case. This is about the Ontario government's welfare policy concerning single parents and cohabitation.

Here's a link to the Supreme Court decision but the reference to the Falkiner case is very brief and doesn't give any information at all.
Here's the excerpt from the decision that refers to Sandra Falkiner:
"Granted with costs: Director, Income Maintenance Branch, Ministry of Community and Social Services, et al. v. Sandra Falkiner, Deborah Sears, Cynthia Johnston-Pepping and Claude Marie Cadieux (Ont.)(Civil) (29294) - (granted on condition that the applicants undertake to pay party and party costs in any event of the cause)"

According to Ian Morrison of Legal Aid Ontario:

"This will be a very important case. The Court will not just be considering the old definition of "spouse" for Ontario social assistance cases, but also whether it is unconstitutional to discriminate against "social assistance recipients" as a class, the same way that it is unconstitutional to discriminate on grounds of race, religion, sexual orientation and so on. The Ontario Court of Appeal said that governments cannot discriminate against social assistance recipients - now the Supreme Court will have to decide whether they were right."

--------------------------------------------

Ontario drops 'spouse in the house' appeal
September 2, 2004
"TORONTO - The government of Ontario is dropping plans to appeal a ruling against its controversial "spouse in the house" law to the Supreme Court of Canada this fall. In a measure introduced by Ontario's former Tory government, welfare recipients lost their benefits as soon as they started living with someone of the opposite sex who earned an income. The law automatically considered the people spouses, despite federal family law, which doesn't consider people common-law spouses until they have been living together for three years. Almost 10,000 Ontarians lost some or all of their benefits when the Conservative government of Mike Harris brought in the change nine years ago.
Source:
CBC News

When he announced that his government would not pursue its appeal of the case, Ontario Attorney General Michael Bryant said, "It's not the business of government to decided when a family is a family."
Under current Government policy, however, government still does just that: according to the same CBC News article (see the link above), "a welfare recipient's benefits are reassessed after he or she has lived with an income-earner for three months, a slight relaxation from the earlier immediate loss of benefits. It is not clear whether the Ontario government intends to revise that three-month policy as well as abandon the Supreme Court appeal. Lawyers for the four women contesting the original rule have said they consider the revised policy unconstitutional as well."
[NOTE: see "Background" below for more info on this.]

---------------------------------------------

McGuinty Government Scraps Lifetime Welfare Ban
Police and Courts to handle fraud, punitive policy repealed

January 9, 2004
(Oops. They forgot to mention about the three-month policy.)
Source:
Ministry of Community and Social Services



Commentary by Vincent Calderhead on the Fraser Forum article :

"Chris Schafer's comment about the recent Falkiner ruling from the Ontario Court of Appeal is the product of someone who appears to know little and care less about constitutional law or, indeed, historical treatment of welfare recipients.

Schafer's main concern with the Falkiner ruling is its recognition that 'receipt of social assistance' is an analogous ground of discrimination under the Equality Guarantee in the Charter. This is the provision which the Supreme Court of Canada has said is intended to promote and protect human dignity. The Supreme Court has indicated that the full power of the equality guarantee has been reserved for state actions which demean the dignity of groups which have been subjected to historical disadvantage, lack political power and are vulnerable to having their interests disregarded. In Falkiner, the court stated that there was ample evidence to establish that being in receipt of assistance means being subject to a wide variety of barriers including stigma, stereotyping "and a history of offensive restrictions on their personal lives".

People interested in this subject can read more in the Report of the Canadian Human Rights Review Panel (June 2000 - see the link below), chaired by former Supreme Court Justice Gerard LaForest. The CHRA panel referred to much of the same kinds of evidence relied on by the court in Falkiner in coming to its own recommendation that "social condition" be included as a prohibited ground of discrimination in any overhaul of the Canadian Human Rights Act. As the court in Falkiner pointed out, most provincial human rights regulations already prohibit discrimination against social assistance recipients.
Report of the Canadian Human Rights Review Panel (PDF file - 1.2MB, 181 pages)

The trial and appeal courts in Falkiner were presented with voluminous social and historical evidence of the disadvantage faced by people attempting to live while in receipt of assistance. This evidence was accepted. That welfare recipients as a group have been subject to decades of demeaning treatment by society and are, therefore, entitled to the protection of the Equality Guarantee will come as no surprise to Canadians except, it appears, to Chris Schafer and the Fraser Institute.

While Schafer wants Canadian legislators to embrace U.S.-style cutbacks to social assistance programs, he is fearful that, what he refers to as the "poor judicial reasoning" in Falkiner may impede implementation of his political agenda. Schafer shows no interest in or familiarity with the accepted legal tests applied by courts in deciding whether to recognize groups as coming within the scope of section 15. His unwillingness to engage the court's reasoning reveals his critique for what it is; at bottom, Schafer would like governments to be free to do just about anything they want with people who are in need. Far from Falkiner representing 'poor judicial reasoning', it would seem that Chris Schafer and the Fraser Institute are the ones who are out of touch with Canadian constitutionalism."

Vincent Calderhead is a staff lawyer with Nova Scotia Legal Aid in Halifax.
He has litigated social and economic rights cases at all levels of court as well as before UN Human Rights treaty-monitoring bodies.
He can be contacted at: <vincent.calderhead@nslegalaid.ca>

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