Law Times

PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Public hoodwinked over pay hike T he province hoodwinked us into believing it had restrained public workers' salaries, a recent Ontario Labour Relations Board ruling reveals. As reported last week in Th e Globe and Mail, the government signed a se- cret deal to give members of the Ontar- io Public Service Employees Union an extra one-per-cent increase in 2012 on top of the two-per-cent boost awarded when the parties reached a collective agreement in 2008. As a result, professional and supervi- sory public servants who are to receive smaller pay hikes sought production of documents related to the OPSEU in- creases in Association of Management, Administrative, and Professional Crown Employees of Ontario v. Ontario (Govern- ment Services). Th ey won that part of the fi ght over alleged bad-faith bargaining by the government in a Feb. 16 ruling by the board. Th e government's actions are outra- geous for a couple of reasons. First, the public didn't know about the extent of the OPSEU pay hike. Second, it acced- ed to a three-per-cent increase at a time when public fi nances were crumbling in December 2008. It was overly gen- erous, particularly in light of the prov- ince's subsequent and largely unsuccess- ful bid for an across-the-board freeze in public-sector salaries. Th e revelations come as Canadians re-elected a federal Conservative govern- ment bent on restraining spending and as Ontario gets ready for a provincial vote this fall. Given our defi cits, public- sector wages should be issues for discus- sion at both levels of government. We have a few choices when it comes to the messy task of fi xing the fi nancial mess. Conservative politicians, notably Mike Harris back in the 1990s, often talk a good game about wage restraint but merely cut civil service jobs and reduce public services rather than dealing with employees' sala- ries, benefi ts, and pensions. In the mean- time, they cut taxes, which puts further pressure on our programs while civil ser- vants get pay increases anyway. Another option is to maintain tax rates or even increase them to pay for both services and employee pay hikes. Given that some unions have been rea- sonable in their demands in recent years by, for example, accepting two-per-cent increases, that option shouldn't be un- palatable. But with last week's election and our current political environment that in recent years has delivered a stream of income, GST, and corporate tax cuts, that's not likely to happen. Th e third option is to take the unions on and let them go on strike if employ- ees won't accept restraint as governments and voters refuse to maintain or increase taxes. It doesn't sound very nice, but par- ticularly given the generous benefi ts and pensions public workers receive com- pared to the private sector, that's the way to go. It's certainly a more honest way of dealing with things than the usual prac- tice of promising effi ciencies without ser- vice cuts that in the end result in reduc- tions to vital programs as we continue to pay for the salary hikes and pensions that squeeze government budgets. In the meantime, in light of the recent labour board ruling, let's start with being transparent about what the pay increases are in the fi rst place. — Glenn Kauth n interesting case related to child support and whether it can count as income in the hands of the child for whom it's payable came out recently from the Ontario Court of Appeal. In Ontario (Disability A Support Program) v. Ansell, the court considered the question of whether, when applying for benefi ts pursuant to the Ontario Disability Support Program Act, child support payable by one parent to the other on account of an adult dependent child with a disability ought to count as that child's income. Th e act partly defi nes income as a payment "on behalf of or for the benefi t of" the child. Th e question is one Canadian courts haven't considered very often. In the case, Jocelyn Ansell, the 21-year-old child at the time of the hearing, suff ered from Asperger's syndrome. She resided with her mother on a full-time basis, and her father paid court-ordered child support of $800 per month. Should support count as child's income? Family While Ansell met the ODSP medical criteria, her claim was denied on the basis that she was already receiving income for her benefi t, through the child support, that must be fi rst deducted from the disability amount she'd otherwise be entitled to receive. Doing so left her nothing by way of ODSP. Th e director therefore denied her claim. She appealed to the Social Benefi ts Tribunal, which reversed the director's decision. Th e divisional and appeal courts further upheld that ruling. While the decision, written on behalf of a unanimous court by Justice John Laskin, encompassed considerable analysis of the statutory scheme and noted certain exceptions in which child support could potentially factor into the defi nition of income received by or on behalf of the child, the most telling and apt portion of the analysis rested on the notion that child support is meant to ensure that the children of Law By Marta Siemiarczuk separated parents continue to be fi nancially maintained at a similar level following the breakup as they were prior to it. Laskin noted quite rightly that a child who lives with both parents and would otherwise qualify for ODSP benefi ts isn't precluded from receiving them notwithstanding the family's fi nancial support. Based on the arguments put forth by the director, then, a child whose parents were separated would be prejudiced fi nancially if support payments made to the custodial parent were included as part of that child's income for purposes of determining eligibility to receive ODSP. Th ere's a fl ipside to this issue, one that has also received www.lawtimesnews.com little consideration in the jurisprudence: what impact does receipt of ODSP benefi ts by an adult dependent child have on the potential recipient parent's claim for guideline child support? In practice, this issue seemingly arises quite a bit; however, the law isn't well settled on this point. Th ere's a small body of cases in the western provinces that indicates that if an adult dependent child is in receipt of social service benefi ts, the court must then conduct an assessment of the actual cost of maintaining that child by the recipient parent. Once that determination is made, an accounting takes place to determine the additional costs that the social service benefi ts don't cover. Th e excess costs, if any, would then be payable by an order for child support either in the way of monthly guideline support or through an order for payment of s. 7 special and extraordinary expenses. Given what the Court of Appeal has determined, it's may 9, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. arguable that social service payments ought not count as a further source of income to cover living and other expenses in the determination of the payor parent's continued child support obligations. Conversely, one of the criteria in determining whether a payor must continue supporting an adult disabled child includes a consideration of whether or not that child is able to withdraw from care, at least in the fi nancial sense. Receipt of payments such as ODSP would certainly play a role in determining that question. Th is is certainly an area that would benefi t from further judicial clarifi cation. It will be interesting to see what future decisions bring on these intertwined questions. Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca.

• Cover
• LawPRO Warning
• Final Remarks
• Focus On E-Discovery