S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones, Macdonald and Chipman, JJ.A. BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL, Director Social Planning Department, City of Halifax Respondent Vincent Calderhead for the Appellant Ms. Beatrice M. Renton for the Respondents Appeal Heard: March 30, 1990 Judgment Delivered: April 12, 1990 THE COURT: Appeal allowed without costs, decision of Chambers judge and any order based thereon set aside, application of the appellant for an order in the nature of certiorari allowed, decision of the Social Assistance Appeal Board quashed, and the application of the appellant for social assistance for the period June 19, 1989, to the date of the birth of her son remitted to the Social Services Department of the City of Halifax, per reasons for judgment of Macdonald, J.A.; Jones, J.A. concurring and Chipman, J.A. dissenting. MACDONALD, J.A.: This is an appeal from the decision of Mr. Justice Rogers in Chambers, whereby he dismissed the appellant\'s application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board for the City of Halifax, which affirmed the rejection of the appellant\'s application for municipal social assistance as an expectant mother. The decision of Rogers J. is now reported in (1990), 92 N.S.R. (2d) 254. The material circumstances are that on June 19, 1989, Catherine McInnis, an unmarried, pregnant, 16 year old girl, applied to the Social Services Department of the City of Halifax for municipal social assistance. Her application was based on the eligibility category for "expectant mothers" under Municipal Social Assistance Policy 1.2.5 (M.S.A. Policy 1.2.5). Her application was refused because she was under 19 years of age and was living with and being supported by her mother and stepfather. An appeal from such refusal was dismissed by the Social Assistance Appeal Board on the ground that M.S.A. Policy 1.2.5, although allowing for the Municipality to consider support for an unmarried mother pending birth, was not mandatory but rather discretionary. In its decision the Appeal Board went on to say: “.. In this case, the Municipality has indicated they are prepared to assist Catherine's parents with all of the extra expenses for food, clothing and any additional shelter expenses caused by the birth of their grandchild. The Family Maintenance Act states that the parents are responsible for the financial support of their children until age 19 and the Board accepts the Municipality's argument that they are not obliged at law to provide assistance directly to Catherine. The Municipality is willing to accept an application for support from Catherine's parents, however, it appears that they would be ineligible because their budget information shows surplus. The Municipality will provide support to Catherine's parents for Catherine's child once the child is born." M.S.A. Policy 1.2.5 of the City of Halifax provides as follows: "1.2.5 SINGLE HEAD OF FAMILY single head of family is that person who maintains home for herself/himself and one or more of her dependent children. single head of family may be: a. separated parent b. divorced parent c. deserted parent d. widowed parent e. an unmarried parent f. parent having spouse in an Institution If the separation or desertion is the result of common‑law relationship, the applicant shall be considered an unmarried parent unless previously married. An applicant who is currently living common‑law relationship or who has remarried shall not be considered as single head of family. Procedure Where it is indicated that the applicant is in one of the above categories they are expected to obtain alternate income, ie. gain support from the spouse or possible father and apply for Family Benefits, Canada Pension or any resource where she might be eligible for benefits. If considered able, the applicant is expected to become self‑supporting through gainful employment. UNMARRIED MOTHER PENDING BIRTH An unmarried mother pending birth can be considered eligible for assistance when she provides medical confirming her pregnancy and outlines an acceptable case plan (a plan which demonstratively indicates actions on part of the U.M.P. that will lead to an improved quality of life for her and her child." In dismissing the appellant's application for an order in the nature of certiorari to quash the Appeal Board's decision, Mr. Justice Rogers said (p. 256‑57): “Section 1.2.5 deals with the policy applicable to single heads of family. To be single head of family eligible for assistance one must first 'maintain' home for herself/himself and 'one or more of her dependent children' and may be separated parent, divorced parent, deserted parent, widowed parent, an unmarried parent or parent having spouse in an institution. Catherine McInnis certainly does not fall within this definition of eligibility for assistance. Catherine McInnis, however, maintains that she is eligible because of the last paragraph of the policy with respect to single heads of family, entitled 'Unmarried Mother Pending Birth'. This paragraph, however, located as it is within the boundaries of the policy section respecting single heads of family, can only have reference to the earlier provisions of s. 1.2.5 and in my opinion is just method of extending eligibility to single head of family who is about to become an unmarried parent although not yet one. The key point here is that Catherine McInnis, although an expectant mother, is not the head of family maintaining home for herself and dependent child. It is Catherine's stepfather who is the head of family and maintaining the household in which Catherine lives." The single issue raised on this appeal is that: "The Learned Trial Judge erred in interpreting Halifax Social Services Policy 1.2.5." The responsibility for providing social assistance is provincial one. The federal, government, however, cost‑shares social assistance under the Canada Assistance Plan (1985, R.S.C. Chap. C‑1). Social assistance is based on need. If such "need" is long‑term or likely to be so, it is provided through the Family Benefits Act, S.N.S. 1977, c. 8. Shorter term assistance is provided by the various municipalities under the Social Assistance Act, S.N.S. 1970, c. 16. It is this latter Act with which we are concerned on this appeal. Part II of that Act is entitled "Municipal Assistance Interpretation". person in need is defined in that part in s. 19(e) as follows: "19(e) 'person in need' means person who, by reason of adverse conditions requires assistance in the form of money, goods or services;" The Act provides for the creation of social service committees within each municipal unit. Section 23(1) of the Act reads as follows: "23(1) Subject to this Act and the regulations the social services committee shall furnish assistance to all persons in need as defined by the social services committee who reside in the municipal unit." Section 23(1) of the Act places a mandatory responsibility upon social service committees to provide assistance for all persons in need as defined by such committee. In defining persons in need the committee must have regard to s. 19(e) of the Act and to ss. 1(m) and 2(1)(d) of the Municipal Assistance Regulations. These latter sections provide: "1(m) 'municipal social services policy' means written directives relating to the granting of assistance issued by Municipal Council and approved by the Minister; and 2(1) The Social Services Director of the Committee shall: ... (d) provide assistance in accordance with the provisions of the Act, these regulations and the municipal social services policy." Pursuant to the foregoing statutory authority, the City of Halifax has approved municipal assistance policies. Policy Statement 1.1.4 provides the following definition of person in need: "1.1.4 DEFINITION OF NEED person who by virtue of loss of employment, disability, insufficient income, inability to obtain employment, loss of principal family provider or age is found on the basis of 'needs test' to be unable to meet or maintain his budgetable requirements. person incapable of achieving personal or economic independence through lack of personal resources can be considered person in need. Various services exist to meet an individual's various needs, Municipal Social Assistance is only one such service." M.S.A. Policy 1.1.5 establishes the general criteria respecting the determination of eligibility for assistance. This policy statement provides for "needs test" used to determine either budget deficit or budget surplus. If there is budget surplus, then the applicant does not qualify for assistance. At the time of her application the appellant was 16 years old and had no independent source of income, but rather was being supported entirely by her stepfather. The City of Halifax has been providing social assistance to the appellant since the birth of her son.. therefore can only assume that she is considered as being person in need of assistance. In statement of procedure, effective last October, it is stated in part: "Single Head of Family between their 16th and 19th Birthday D. The City of Halifax further wants to encourage the dependent single parent to benefit from his/her parents knowledge in child care and wants the dependent single parent to take advantage of completing their education and/or training to increase their prospects for financial independence in adulthood. Because the City of Halifax is at the same time anxious that the dependent single parent and his/her child not present financial burden to the family (such burden being an impediment to positive relationship within the family), the City of Halifax is prepared to provide financial assistance when the following criteria have been met. a) the dependent single parent provides proof of parentage and/or legal custody (usually by birth certificate or court order when not the biological parent). b) the parent(s) of the dependent single parent must approve of the application (usually by co‑signing the application for assistance). Should this approval not be given, the application will not be accepted. c) the dependent single parent provides proof of Family Court Hearing date respecting maintenance from the father [or parent(s)] of the child. d) the dependent single parent provides proof that an application for Family Benefits has been submitted." The appellant has met all the required criteria set out in the foregoing statement of procedure and, as mentioned, is now receiving social assistance. If the interpretation given to M.S.A. Policy 1.2.5, by Mr. Justice Rogers is correct, then an unmarried mother, like the appellant, pending the birth of her first child, could not qualify for municipal assistance even if she was completely maintaining herself without any family support. She would not qualify because she would not be "a single head of family" because she would not be maintaining home for herself and one or more dependent children. The result would be that if two 16 year old girls in identical circumstances were pregnant but one had previous child, the latter could qualify for assistance, but the former could not. That result surely was not what the City intended when it enacted M.S.A. Policy 1.2.5. In my view, the provisions relating to assistance for "unmarried mother pending birth" in M.S.A. Policy 1.2.5 is and was intended to be simply provision providing the circumstances under which an unmarried mother was to be considered eligible for assistance pending birth. Such eligibility is not and was not intended to be dependent upon the unmarried mother maintaining home for herself and one or more dependent children. This interpretation appears to have been recognized by the Appeal Board when it said that although the provision allows the Municipality "to consider support for an unmarried mother pending birth ... it is not mandatory". Policy statements are made by municipalities under the authority of s. 23(1) of the Social Assistance Act. This provision, as noted earlier, makes it mandatory that social service committees shall furnish assistance to persons in need. Delegated legislation cannot be broader than the enabling legislation and, therefore, in my opinion, the Appeal Board erred in treating the provision in question as creating discretionary right to assistance. It follows that the application to quash the Appeal Board's decision should have been granted for that reason alone. For the foregoing reasons, it is my opinion that both the Appeal Board and Mr. Justice Rogers erred in the manner described. would, therefore, allow the appeal without costs; set aside the decision of the learned Chambers judge and any order based thereon; allow the application of the appellant for an order in the nature of certiorari; quash the decision of the Social Assistance Appeal Board and remit to the Social Services Department of the City of Halifax the application of the appellant for social assistance for the period June 19, 1989, to the date of the birth of her son. J.A. Concurred in: Jones, J.A. CHIPMAN, J.A.: (dissenting) This is an appeal from decision of Mr. Justice Rogers [(1990), 92 N.S.R. (2d) 254] dismissing the appellant's application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board (the Board) for the Sity of Halifax which confirmed the denial of the appellant's application for municipal assistance. On June 19, 1989 the appellant, an unmarried, pregnant 16 year old girl applied to the Social Services Department of the City of Halifax (the Sity) for municipal assistance. She was, at the time, living in the home of her mother and stepfather, where she was being supported. Her affidavit placed before the Social Assistance Appeal Board stated inter alia: "14. THAT am currently living in my parents home because realize that can use and appreciate the emotional support that my parents, but especially my mother are providing for me at this point; 15. THAT have considered living apart from them but feel that can use my mother's support as much as possible now and it is for this reason am continuing to live in their home." The application was refused by Ann Hopp, the Social Assistance worker because the appellant was under 19 years of age and was living with and being supported by her mother and stepfather. On appeal from such refusal, the Board in its unanimous decision said: “.. In this case, the Municipality has indicated they are prepared to assist Catherine's parents with all of the extra expenses for food, clothing and any additional shelter expenses caused by the birth of their grandchild. The Family Maintenance Act states that the parents are responsible for the financial support of their children until age 19 and the Board accepts the Municipality's argument that they are not obliged at law to provide assistance directly to Catherine. The Municipality is willing to accept an application for support from Catherine's parents, however, it appears that they would be ineligible. because their budget information shows surplus. The Municipality will provide support to Catherine's parents for Catherine's child once the child is born." In dismissing the application for an order in the nature of certiorari, Mr. Justice Rogers found that the appellant was supported by her parents and that she did not qualify under Municipal Assistance Policy 1.2.5 (M.S.A. Policy 1.2.5) of the City providing for assistance to the single head of family. On appeal to this Court, counsel for the appellant says that the trial judge erred in misapprehending the municipal social assistance scheme and M.S.A. Policy 1.2.5 in particular. Short term assistance, with which we are here concerned, is provided by the Municipalities in this province under the Social Assistance Act S.N.S., 1970, c. 16. The Province of Nova Scotia furnishes reimbursement to the Municipalities in accordance with the Regulations made under that Act. The duty of Municipality to provide for social assistance is set out in s. 23(1) of the Act which reads: "23(1) Subject to this Act and the regulations the. social services committee shall furnish assistance to all persons in need as defined by the social services committee who reside in the municipal unit." person in need is defined in s. 19(e) as follows: "19(e) 'person in need' means person who, by reason of adverse conditions requires assistance in the form of money, goods or services;" In determining who are persons in need, the' Social Services Sommittee must have regard to s. 19(e) of the Act and to ss. 1(m) and 2(1)(d) of the Municipal Assistance Regulations which provide: "1(m) 'municipal social services policy' means written directives relating to the granting of assistance issued by Municipal Council and approved by the Minister; and 2(1) The Social Services Director of the Committee shall: (d) provide assistance in accordance with the provisions of the Act, these regulations and the municipal social services policy." Pursuant to the foregoing, the City has approved Municipal Assistance Policies which include 1.1.4 and 1.2.5: "1.1.4 DEFINITION OF NEED person who by virtue of loss of employment, disability, insufficient income, inability to obtain employment, loss of principal family provider or age is found on the basis of 'needs test' to be unable to meet or maintain his budgetable requirements. person incapable of achieving personal or economic independence through lack of personal resources can be considered person in need. Various services exist to meet an individual's various needs, Municipal Social Assistance is only one such service." 1.2.5 SINGLE HEAD OF FAMILY single head of family is that person who maintains home for herself/himself and one or more of her dependent children. single head of family may be: a. separated parent b. divorced parent c. deserted parent d. widowed parent e. an unmarried parent f. parent having spouse in an Institution If the separation or desertion is the result of common‑law relationship, the applicant shall be considered an unmarried parent unless previously married. An applicant who is currently living common‑law relationship or who has remarried shall not be considered as single head of family. PROCEDURE Where it is indicated that the applicant is in one of the above categories they are expected to obtain alternate income, ie. gain support from the spouse or possible father and apply for Family Benefits, Canada Pension or any resource where she might be eligible for benefits. If considered able, the applicant is expected to become self-supporting through gainful employment. UNMARRIED MOTHER PENDING BIRTH An unmarried mother pending birth can be considered eligible for assistance when she provides medical confirming her pregnancy and outlines an acceptable case plan (a plan which demonstratively indicates actions on part of the U.M.P. that will lead to an improved quality of life for her and her child." In Woodard v. Lynch, et al. (1983), 64 N.S.R. (2d) 429, Hallett, J. (as he then was) made an extensive review of the legislative scheme set up under the Act, the Regulations and the Municipal Assistance Policies, with particular regard to those of the Sity. He concluded at p. 438 that if the Board misinterprets the Policy, it is an error in law which, if it appears on the face of the record, may be quashed by this Court. agree and would also point out that the same results follow if the Board misinterprets the Act or the Regulations. Dealing with s. 23 of the Act, Hallett, J. said at p. 440: "Section 23 of the Act provides that, subject to the Act and the Regulations, the Social Services Sommittee shall furnish assistance to all persons in need as defined by the Sommittee. That section seems to impose in‑the clearest terms the obligation on the municipal unit to provide the assistance and to leave it to the municipal unit to define who is person in need and the extent of the assistance to be provided. There is obviously conflict that must be resolved. As stated by counsel for the parties, the drafting leaves something to be desired. am of the opinion, in looking at the Act, the Regulations and the Policies approved by the Minister, that the primary obligation to determine who gets what in. the way of municipal assistance is on the municipal units and, secondly, that the primary purpose of the Regulations is to establish framework for the providing of assistance by the municipal units that will qualify it for reimbursement..." In my opinion, the evidence does not establish that the appellant is person in need within the definition of either s. 19(e) of the Act or M.S.A. Policy 1.1.4. see no error on the part of the caseworker acting on behalf of the Social Services Director of the Sity or the Board in affirming her decision. M.S.A. Policy 1.2.5 provides for assistance to the single head of family. The final paragraph of this provision regarding unmarried mothers pending birth gives an extended meaning to single head of family, so as to include the unwed mother of the child not yet born. Apart from this extension, the requirement that the parent be single head of the family who maintains home for herself still stands. All that is deleted from the requirement is "and one or more of her dependent children". In place thereof is substituted the requirement that she be expecting child and outline an acceptable case plan as set forth in the policy. There is nothing unusual or unfair about this special requirement that might distinguish between ,pregnant woman without another child and one with another child. fully agree with Mr. Justice Rogers when he said: "This paragraph, however, located as it is within the boundaries of the policy section respecting single heads of family, can only have reference to the earlier provisions of Section 1.2.5 and in my opinion is just method of extending eligibility to single head of family who is about to become an unmarried parent although not yet one. The key point here is that Satherine McInnis, although an expectant mother, is not the head of family maintaining home for herself and dependant child. It is Catherine's stepfather who is the head of family and maintaining the household in which Catherine lives. It is true that the Board phrased its reason for refusal of assistance initially on the basis that the paragraph having to do with unmarried parents pending birth is not mandatory. Whether the provisions of this paragraph are mandatory or discretionary is, in my view, irrelevant since Satherine did not meet the first requirement for assistance under this head, that of maintaining household." The evidence does not show the appellant to be person in need as defined in any part of the legislative scheme. She was not by reason of adverse conditions requiring assistance nor could, through lack of personal resources, be considered person in need. Mr. Justice Rogers was correct in affirming the decision of the Board. This decision was made on August 4, 1989 with reference to the appellant's application of June 19, 1989. Subsequent to the decision of the Board, the appellant gave birth to child. We have been informed that the Sity has provided the appellant with assistance since the birth of that child. This can be taken as evidence that she is now considered to be person in need under M.S.A. Policy 1.2.5 and in particular, Sub Policy 1.2.5.3 D. This is not evidence that she qualified as person in need under M.S.A. Policy 1.2.5 at the material time which was before the birth of the child. would dismiss the appeal without costs. J.A. 1989 S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SOCIAL ASSISTANCE APPEAL BOARD BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL Director, Social Planning Department, City of Halifax RESPONDENT HEARD BEFORE: The Honourable Mr. Justice R. MacLeod Rogers PLASE HEARD: Halifax, Nova Scotia DATE HEARD: September 5, 1989 COUNSEL: VINCENT CALDERHEAD, FOR THE APPELLANT MR. BARRY ALLEN, FOR THE RESPONDENT APPLICATION ON APPEAL S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL, Director Social Planning Department, City of Halifax Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A. CHIPMAN, J.A. dissenting
This was an appeal from a decision dismissing the appellant's application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board for the City of Halifax which affirmed the rejection of the appellant's application for municipal social assistance as an expectant mother. The appellant was a pregnant unmarried 16 year old living with her parents at the time of her application for social assistance. The trial judge concluded that under Municipal Assistance Policy 1.2.5 the applicant was not eligible since she was not a single head of a family maintaining a home for herself and her dependant child. Allowing the appeal, that s. 23(1) of the Social Assistance Act places a mandatory responsibility upon social service committees to provide assistance for all persons in need as defined in s. 19(e) of the Act. Pursuant to this statute, the City of Halifax has approved municipal assistance policies and Policy 1.2.5 relating to an 'Unmarried Mother - Pending Birth' was intended to set out the circumstances under which an unmarried mother was to be eligible. It was not intended that the appellant have to be already maintaining a home for herself and one or more dependant children. In a dissenting opinion, Chipman, J.A. concluded that as the provision with respect to an 'Unmarried Mother - Pending Birth' came under the heading 'Single Head of Family', the provision is merely an extension to include within the definition of a single head of a family an unwed mother whose child is not yet born. The requirement that she be a single head of a family maintaining a home still stands.