IS TWELVE A MAGIC NUMBER?

Nope. Not when it comes to family law, anyway.

There’s a popular misconception that when a child turns twelve, he or she can choose which parent he or she wants to live with.

The truth is that while the preference of the child may be relevant when making custody decisions, there is no specific age at which the preference automatically decides the issue.

A more accurate saying is: babies go where you put them, children go where they’re told, and teenagers vote with their feet. But in practice, each case turns on its own facts. The preferences of children as young as eight and nine has been considered by judges in some cases. This is especially true where the child appears to be mature and thoughtful for his or her age. However, the child’s preference does not bind the judge, whose decision must always be based on the overall best interests of the child. If the child’s desire is based on poor reasons or there are other, more important facts, the judge may grant custody to the other parent. However, by the time a child is near adulthood, judges will generally recognize that a custody order that contradicts the child’s preference will be impractical.

So now you know: there’s no magical number, just a practical spectrum.

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Extra Money for People Looking After Children of Relatives

Sarah has been taking care of her 3 year-old nephew, Paul, for the past 4 months. Paul’s mother, Mary, had to leave the country and Sara had expected that she would be back by now. But Mary’s plans have changed, and now she is not expected back for another year. Sara works full time and has been trying to make ends meet but with two children of her own to support, she can no longer afford to support her nephew without some financial help.

I tell Sarah that a relative who cares for a child residing in his or her home may be eligible to receive monthly Child in the Home of a Relative (“CIHR”) benefits from the welfare ministry a.k.a. the Ministry of Employment and Income Assistance (“MEIA”).

The criteria for these benefits are set out in section 6 of the Employment and Assistance Regulation (see http://www.eia.gov.bc.ca/PUBLICAT/VOL1/Part3/3-3.htm#6 ). The main criteria are:

(a) the child must reside with a relative,
(b) the child’s parent must have placed the child with the relative,
(c) the child’s parent must not reside with the relative,
(d) the relative and any other adults aged 18 and over in the relative’s household must authorize MEIA to conduct a criminal record check, and to review whether they have had prior contact with the Ministry of Children and Family Development (“MCFD”). They must also agree that MEIA can use this information to conduct a safety audit to determine if the relative’s home is a safe placement for the child;
(e) MEIA must decide, after a safety audit, that the relative’s home does not pose a level of risk to the child that would make it an inappropriate place for the child;
(f) there is no “kith and kin agreement” with the Ministry of Children and Family Development (in which case other funding may be available from that Ministry)


“But,” says Sarah, “I work full-time, and so does my husband. Isn’t MEIA the welfare ministry? How can I be eligible for welfare benefits?”

I explain that MEIA is indeed the ministry that administers welfare benefits in B.C., but a relative who is caring for a child in their home does not need to be financially eligible for welfare in order to receive CIHR benefits on behalf of the child. Furthermore, the care-giving relative’s household income and assets are not considered in determining whether they are eligible for CIHR benefits on behalf of the child.

“So how much is the benefit?” she asks. I tell Sarah that it depends on the age of the child. There is a chart of the different rates at http://www.eia.gov.bc.ca/mhr/cihr.htm. For a 3 year-old like Paul, the maximum is $257.46 per month. MEIA does expect a child’s parent(s) to contribute to the child’s care. However, if the parent(s) cannot or do not contribute, they do not pursue the parents for child support. If Mary contributes to Paul’s care, any amounts she gives Sara will be deducted from the CIHR benefit.

“What do I need to do to show MEIA that Mary placed him with me?” Sarah asks. Before Mary left B.C., she wrote a notarized letter giving Sara the authority to care for Paul until further notice, and also confirms that Paul’s father, Joseph, is deceased. Will this letter suffice?

I tell Sarah that the notarized letter may be good enough, but usually, MEIA wants the child’s parent to sign the CIHR application form, confirming that they want the relative to care for their child. However, in cases where the parent is not available to sign such a form, MEIA may be persuaded to accept a letter or other document which confirms that the parent wants the relative to care for the child. The care-giving relative does not have to have a court order for custody or guardianship.

“How do other benefits, like the child tax benefit, affect CIHR benefits?” Sarah asks. “Are they deducted from the CIHR benefit amount?”

I explain that the Child Tax Benefit, Universal Child Care benefit, and most other benefits paid on behalf of children are not deducted from CIHR benefits. A relative like Sarah who is caring for a child can get the Child Tax Benefit and Universal Child Care benefit, and she should apply for those as soon as possible. There are other benefits that some relatives caring for children may qualify for. For example, if the relative is caring for a child whose parent (or parents) have either passed away, or are receiving CPP disability benefits, then the child may be eligible for CPP benefits. There are CPP benefits for children of disabled CPP contributors, and CPP benefits for surviving children of deceased CPP contributors. CPP benefits are not deducted from CIHR benefits. I tell Sarah that the Legal Services Society (a.k.a. Legal Aid) has a family law website that includes a useful chart with more information about various benefits that may be available to some relatives who care for children. See: Grandparents benefits

Finally, I advise Sarah if her application is refused, she can appeal MEIA’s decision. The first step in an appeal is to file a “Request for Reconsideration” of MEIA’s decision. That must be done within 20 business days of the day the relative was notified of MEIA’s decision. I tell Sarah that if she needs to pursue a Request for Reconsideration, she should call me again so I can discuss that process with her and offer some advice.

And with that I conclude the call.

For your further information, the legislation regarding CIHR benefits does not define what categories of “relative” may be eligible for those benefits. As MEIA has an obligation under the BC Human Rights Code not to discriminate against someone on the basis of their family status, the term “relative” should, in our view, be given a broad interpretation, and certainly includes blood relatives (siblings, cousins, aunts and uncles, etc) and relatives either through marriage or through common law relationships (e.g. step-parents, step-grandparents, step-auntie, etc).

Finally, people who receive income assistance themselves can also get CIHR benefits if they meet all the other criteria for CIHR benefits. The CIHR benefit is not considered to be part of the relative’s “income,” so it is not deducted or clawed back from the relative’s own income assistance cheque. Furthermore, where the child cared for is under the age of three, or the child has a physical or mental condition that precludes the relative from leaving home for the purpose of employment, the relative will not be required to look for work in order to continue getting his or her own income assistance cheque.

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LAST UPDATE: ONTARIO DEMAND LETTERS

Still nothing.

It is nearly a year now, and the Ontario Law Society (“OLS”) has still not made a decision. In the meantime, at least one Ontario lawyer continues to crank out these letters.

The official line from the OLS is that they are still “investigating.” As the facts are perfectly clear and simple, this just boggles the mind.

Since this is our fourth entry on this topic, there will be no further updates regarding the OLS until, or should we say, unless, they reports that they have made a decision.

We have found our experience with the Ontario Law Society very disillusioning.

As they are unable or unwilling to handle complaints within a reasonable period of time, we are working on another option, and will let you know about that once it gets underway.

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