2011 September - Download PDF

 

WHEN CAN CPP/OAS BENEFITS BE SUBJECT TO SEIZURE ?

 

(The following article has been reprinted with the permission of the Advocacy Centre for the Elderly)

The Old Age Security Act and the Canada Pension Plan Act provide that Old Age Security (OAS) and Canada Pension Plan (CPP) benefits shall not be assigned, charged, attached, anticipated or given as security, and any transaction claiming to do so is void. In practical terms, this means that if you are successfully sued, OAS or CPP benefits cannot be taken from you to pay the court order.

The 1995 case of Metropolitan Toronto (Municipality) v. O’Brien established that even if pensions are deposited into a bank account, third party creditors cannot garnishee the pension amounts in order to pay an outstanding judgment.

However, in the following situations, your pension funds are not protected and can be seized.

1. Pension funds are deposited into an account with a financial institution to whom you owe money

If you are behind in payments owing to your bank, it can seize any funds that you deposit into that bank, including pension funds. Most standard banking agreements contain provisions allowing the bank to “set off” any money that they receive from you against the money you owe to the bank. If you are behind in payments owing to a bank by way of a credit card, mortgage or line of credit, you should be aware that the bank can seize any pension funds or other funds that you deposit into your bank account.

2. Support or maintenance arrears for children and/or spouses

If you are behind in your support or maintenance payments, 50% of your pension income can be seized to pay these arrears. In Ontario, this is often done through the Family Responsibility Office. To stop this seizure of funds, you have to apply to court and explain why the court should make a new order reducing or eliminating the outstanding arrears.

3. Canada Revenue Agency

The Canada Revenue Agency (CRA) has very broad powers to seize any of your tax return money in order to collect outstanding tax arrears. The CRA will simply send a letter to your bank or to the Income Security Programs (the office responsible for OAS and CPP benefits) to advise them how much of your pension or other money must be sent to the CRA for tax arrears. In practice, there is sometimes room for negotiating the amount that will be seized by the CRA.

4. Income Security Programs overpayments

If Income Security Programs determines that they have paid you too much, even it is their mistake, they can deduct money from your pension payments. In practice, the amount deducted from each pension cheque can be quite modest. It is possible to negotiate the amount that will be deducted by contacting the Income Security Programs.

5. Social assistance repayments

If you are eligible to receive OAS benefits, you will not normally be eligible to receive social assistance benefits from Ontario Works or the Ontario Disability Support Program. However, if you are not yet receiving pension benefits because your pension application has not been completed or your eligibility has not been determined, you may apply for and receive social assistance. Keep in mind that you may also be required to reimburse the money you receive from social assistance once you start receiving your pension benefits. The social assistance money is automatically deducted from any retroactive pension benefits paid to you. This prevents the double payment of both pension and social assistance benefits.

 

If you have any questions about deductions that have been made from your pension benefits, you should contact the Income Security Programs office at 1-800-277-9914. You should have your social insurance number and other identifying information such as your address and date of birth ready when making inquiries.

If you do not speak English, it is important to have someone with you who can speak English. Service Canada will still need to speak to you though to ask you to tell them whether it is okay for them to speak to the person who is helping you.

 

MISREPRESENTATION

 

In the recent decade, Canada Immigration has taken an increasingly tough stance against misrepresentation. The consequences of misrepresentation for a permanent resident or someone who has no permanent status in Canada (foreign national) can range from being denied entry into Canada to removal from Canada. According to the Immigration law, people who misrepresent or hold back “material” facts, either directly or indirectly, relating to a relevant matter that causes or could cause there to be an error made in the administration of the Immigration law, could be found to be inadmissible to Canada. In other words, information which is false or untrue that you give to Canada Immigration could affect your status in Canada.

Canada Immigration will look at each case on its own facts to decide whether or not to take enforcement action and it is guided by the law and policy guidelines in making this decision. Therefore, it is not possible to list what is a misrepresentation and what is not. However, there are certain situations which generally could be treated as misrepresentation:

1. not telling Canada Immigration about your criminal record

2. not telling Canada Immigration about a removal order which was issued against you in the past

3. not revealing the existence of all of your family members when applying for a visa

4. lying about the age of family members on an application especially those of dependent children

5. providing false documents or certificates

6. failing to tell Canada Immigration about a change in your marital status or other important change (such as the birth of another child) prior to being issued a visa overseas or in Canada – for example, you are planning to immigrate to Canada with your parents who include you on their application as a single dependent child. However, you marry before coming to Canada and fail to tell Canada Immigration. You are issued your immigrant visa, come to Canada and then submit a sponsorship to sponsor your spouse. Canada Immigration catches the inconsistency and could report you for misrepresentation because by nor reporting your marriage, you were able to obtain permanent resident status that you may not have been entitled to because you had married.

 

Usually mix-ups in information contained in application forms do not constitute misrepresentation if the information has no bearing on the applicant’s ability to qualify to obtain the immigration document they are applying for. Examples of this type of mistake are mixing up the order of the month and date of the date of birth or putting the wrong dates on the employment history.

If Canada Immigration decides that enforcement action is warranted because of a misrepresentation, you will be notified of their intentions by letter and usually allowed to forward submissions and documentations regarding why it is your position that there was no “misrepresentation” as defined in the Immigration law. If Canada Immigration decides that they think there was misrepresentation, a report will be completed which can be used to convene an admissibility hearing before the Immigration Division of the Immigration and Refugee Board. At the hearing, an adjudicator will decide whether or not there was misrepresentation as it is defined in the Immigration law. At the hearing, you have the right to be represented by legal counsel and to give testimony and bring witnesses and other documentary evidence. If u are a permanent resident and the adjudicator decides that there was misrepresentation, a removal order will be issued. This removal order can be appealed to the Appeal Division of the Immigration and Refugee Board.

At this appeal hearing, you are allowed to have legal representation and present oral and documentary evidence as to why the removal order should be cancelled or “stayed” or freezing the order for a period of time – The Appeal Division is able to look at all of the circumstances of your case in making this decision.

It is important to remember that a permanent resident or someone who does not have status in Canada has been found to be inadmissible to Canada because of misrepresentation, this inadmissibility stays in effect for 2 years following the date the removal order is made if there is no appeal made or no right to appeal (in cases of criminality) or the date the Appeal Division makes its final determination of an appeal. If the inadmissibility finding was made outside of Canada, the two year period starts on the date the visa officer makes his final decision (ie) the date of the refusal letter.

Since misrepresentation can have serious consequences on permanent residents or foreign nationals, pay close attention to any information you provide to Canada Immigration, especially on any forms you complete. If you cannot understand English and have to have someone else help you complete forms, make sure that person explains to you what has been written on the forms to ensure accuracy. Always be careful of anyone, whether it be a friend or hired immigration consultant or lawyer, who advises you to report information to Canada Immigration which is not real.

 

Temporary Foreign Workers

 

Many people come to work in Canada as temporary foreign workers or live-in caregivers. Although they come to work in Canada on work permits and do not have permanent resident status yet, they basically have the same protection under Ontario’s labour laws as other workers in Ontario.

Our Employment Standards Act gives them the same protection as other workers with respect to minimum wage, working hours, overtime hours, break time, public holiday pay, vacation pay and termination pay. If they lose their jobs and have a valid work permit, they can apply for regular, sickness, maternity and parental employment insurance benefits.

They can change or quit their jobs. However they need to apply for a new work permit if they change jobs. To apply for a new work permit, the worker has to complete the application form which is available from Canada Immigration’s website, have a copy of a positive labour market opinion and a signed employment contract with the new employer. The new employer must obtain the positive labour market opinion before hiring the worker.

Live-in caregivers, who are approved to come to work in Canada under the Live-In Caregiver program may be eligible to apply for permanent residence in Canada after working for 24 months or 3900 hours of authorized full time employment as live-in caregiver. Temporary foreign workers may be eligible to apply for permanent residence in Canada after qualifying under the Canadian Experience Class. To be eligible, you must be working in a job classified as under the National Occupation Classification (NOC) A & B for more than 2 years.

The Ontario Ministry of Labour’s website at www.labour.gov.on.ca more information workers rights. The Ministry’s phone number is 416 326 7160.

 

SPOTLIGHT ON THE OFFICE OF THE OMBUDSMAN FOR THE CITY OF TORONTO

 

The Office of the Ombudsman for the City of Toronto opened on April 6, 2009. The mandate of the Ombudsman is to address the concerns of Torontonians about the public services they receive from the city and to investigate complaints of administrative unfairness. This Office is independent from the City and impartial. Its services are confidential and free of charge.

Examples of services within the jurisdiction of this office are long term care homes, the TTC, public health and parks, forestry and recreation. It is an office of “last resort” which means that Torontonians with complaints must first try to work out their issues with the relevant City division before contacting the Ombudsman and have exhausted the complaints process for that particular City service or program. If you need information about the internal complaints procedure for City services, you can contact the Toronto Ombudsman.

More information about the Toronto Ombudsman can be found on their website at www.ombudstoronto.ca or by calling 416-392-7062. You can file a complaint with them by phone, by using the complaint form found on their website, by email, letter, fax or in person. The office is located at 375 University Avenue, Suite 203, Toronto, Ontario M5G 2J5. If you do not speak English, you will need to a someone call the office on your behalf.