Reimbursable benefits must ordinarily be claimed from the person who has received them.
Since the coming into force of the Act respecting income security on August 1, 1989, the rule of JOINT AND SEVERAL LIABILITY of spouses means that both adults in a family are equally accountable for such debt.
1. Client and spouse
1.1 Assistance received unduly
Spouses who have received assistance are jointly and severally liable to repay benefits paid to their family unduly whether the assistance was granted to an independent adult or to a family which included one or two adults.
In all cases of a joint and several debt, a formal notice (notice of claim) must be sent personally to each spouse.
The notice of claim is sent by regular mail when the claim is below $2,000. When the claim exceeds $2,000, the notice of claim is sent to each debtor by certified mail of the Canada Post Corporation (Xpresspost). The Canada Post Corporation advice of delivery (pink card) which accompanies the mailing constitutes the proof of receipt and is filed in the client’s file, the former client’s file or the joint and several debtor if he or she is not a client.
When the Income Security is informed, by return of the formal notice to the CLE (undelivered mail), that the client does not take possession of the notice of claim, the councillor summons the client to the CLE to give it to him or her personally. The client confirms then in writing that he or she has taken possession of the notice of claim (with details: date, amount, claim no., etc.). This form is filed in the client’s file. If the client does not report, the councillor will send him or her the notice of claim.
However, joint and several liability may not apply if one of the spouses uses one of the following personal exceptions:
- the spouse proves not having received the notice;
- the spouse proves that the claim is based on an act or omission of the other person which the spouse could not reasonably have been aware of;
- the spouse proves that the spouse’s real circumstances could not be declared by reason of the violent behaviour of the other spouse toward the spouse or the spouse’s dependent children if the claim is after October 1, 1999.
In these three cases, the other spouse is solely liable for the entire debt since joint and several liability is ended.
Moreover, no subsequent claim for the same period can be made of the spouse who no longer has liability when the joint and several liability was for the total assistance granted; the other spouse will have to repay all of this assistance and Income Security cannot claim more than the assistance granted.
However, if the joint and several claim is not for all the assistance granted, a subsequent claim may be made; it cannot exceed the difference between the assistance granted and the assistance already claimed from the other spouse.
1.1.1 Spouse victim of violence
A person from whom the Income Security is claiming a joint and several debt may be exempted from repayment if that person proves that he or she could not declare his or her real circumstances by reason of the violent behaviour of his or her spouse toward that person or that person’s dependent child.
That person must prove that he or she and/or his or her child suffered violence at the hands of his or her spouse and that this violence made it impossible for that person to declare his or her real circumstances, for example, to reveal that he or she was cohabiting with the spouse or that the spouse had resources which should have been taken into account in establishing the deficit.
Violence is a purely personal reason that can be offered by only the victim; consequently, Income Security does not have to inform the allegedly violent spouse of the reason given by the victim to free himself or herself from the debt (refer to the operational procedure).
This provision applies only when the claim is made after October 1, 1999, regardless of the period in question.
When the claim was made before October 2, 1999, the person may come under the provisions which authorizes the Band Council to discharge a debt or suspend its recovery. The request is then sent to the recovery centre.
In cases where joint and several liability for a debt has ended under section 110 of the Act, but the victim of violence fears more violence and refuses to continue proceedings, he or she should be informed of the possibility of intervention under the discretionary power in section 115 of the Act. The consequences of application of section 115 are less onerous for the violent debtor. In fact, if the debt is discharged, he benefits from this discharge (50% of the debt); if recovery is suspended in the victim’s case, he retains the right to argue the joint and several liability for the debt before the civil courts.
PROOF OF VIOLENCE
Cases of VIOLENCE or FEAR OF REPRISALS are ones where a client has already been the victim of violence on the part of his or her former spouse and fears new reprisals or cases where the client has already been the target of real and serious threats by his or her former spouse. These threats must involve a risk to the health and safety of the client or of his or her children.
Since the violent spouse is not informed of the victim’s request to be exempted from repayment of the debt at the moment that the file is being studied, the proof of the violence that the victim must provide must be preponderant and credible. It must include one or several of the following characteristics:
- the victim has already made a COMPLAINT to police authorities (police report);
- a PERSON (relative, friend, neighbour) TESTIFIES as to the violence or threats against the victim or his or her children, the violent nature of the former spouse, problems experienced as a result of the violence;
- the victim has already been admitted into a SHELTER for victims of violence;
- a person such as a social worker, psychologist, doctor or other qualified person produces a CERTIFICATE stating that the victim or his or her children have suffered violence at the hands of the former spouse.
- Note that the violence the victim himself or herself and his or her children suffered or feared during the period covered by the claim may be psychological, physical, verbal or sexual in nature.
Documentary evidence must show that the violence and fear of reprisals in all likelihood lasted for the entire period covered by the claim. When certain items of documentary evidence do not establish this certainty, for example, a police report or a certificate from a shelter which cover only an isolated incident, the victim must reinforce his or her proof with the testimony of family or friends who can certify as to the persistence of the violence. It is important that the victim be given a clear explanation of all the types of proof that he or she may submit to support his or her request.
APPLICATION
Knowledge of a violent situation may occur at different points in time.
- situation known before a notice of claim is issued.
Joint and several liability ceases to apply at this point if proof of the violence has been established in a preponderant fashion; the notice of claim is sent solely to the violent spouse.
- situation known after a notice of claim is issued.
A decision may be made at the preprocessing or review stage or even by the Appeal Committee, depending on when the violence is made known. Joint and several liability can be ended when this fact is demonstrated.
The section does not apply when all recourse has been exhausted, the review service and the Appeal Committee have in turn rejected the victim’s recourse when he or she pleaded violence and when the claim certificate has been filed.
1.2 Assistance received in the circumstances set out
Joint and several liability also applies in the case of ASSISTANCE REPAYABLE as the result of a legal impediment, temporary ineligibility for benefits paid under another Act or compensation for benefits withheld by another agency.
1.3 Conditional assistance
The rule that spouses are jointly and severally liable does not apply to a claim for assistance received pending realization of a right. In that case the debt is PAYABLE solely by the SPOUSE to whom the right was due or the adult who had custody of the child to whom it was due.
However, when the two spouses are still part of a family, the DEDUCTIONS MADE FROM ASSISTANCE paid to that family shall be used to reimburse conditional assistance.
2. Third-party debtor of client
When a client or ex-client has a claim to a right to be realized, apart from support payments determined by judgment, the PERSON PAYING that right or anyone who may be placed in that category may be accountable on written notice to PAY the Income Security any amount owed in respect of the right up to the debt of the person to whom it is owed.
This procedure can guarantee faster reimbursement of a debt owed the Income Security in cases in which the client or ex-client is awaiting a right from a person or private agency, such as the proceeds of insurance, an award in a civil action and so on.
The formal notice sent to a third-party debtor does not exempt the Income Security from sending a claim notice to the debtor of the last resort financial assistance debt.
Remittance by the debtor of the amount owed to the Income Security constitutes payment made to the creditor-client whose debt is repaid or, if applicable, reduced, if the reimbursement does not fully extinguish the debt owed the Income Security.
If this reimbursement is not made, the THIRD PARTY DEBTOR shall then be REQUIRED TO PAY THE DEBT in the client's stead up to the amount due the latter. However, the Income Security must PROVE that the third-party debtor was DULY INFORMED IN WRITING (SR-197) that he had to remit any amount he owed in respect of right realized by the creditor-client. The written notice is sent to the third party debtor by registered or certified/priority mail. The ADVICE OF DELIVERY issued by the Canada Post Corporation (pink card) that is sent with the mailing constitutes proof and must be filed in the client’s file.
NOTE : The Canada Post Corporation’s ADVICE OF DELIVERY is always sent along with certified mail, but only on request with registered mail.
When Income Security is informed, by return of the advice of delivery or by return of post, that the third party debtor does not take possession of the notice in writing, the councillor sends it by process server or regular mail.
Section 104 of the Act does not apply where the debtor of a last resort financial assistance debt is awaiting a benefit or amount from a public agency such as the CSST, SAAQ, RRQ or a federal agency.
However, according to provisions in the legislation which they apply, the CSST, SAAQ and RRQ must at the Income Security request deduct conditional assistance paid by the Income Security from compensation payable. A deduction procedure provides for recovery of amounts owed under agreements reached with these agencies.
JOINT AND SEVERAL LIABILITY is a civil law concept according to which debtors are required to pay the same debt, so that each can be held liable separately to pay the entire debt. Payment by one debtor releases the other from any obligation to the creditor. When Income Security is the creditor in a joint and several debt he can seek payment of the debt from either debtor.
A spouse who does not benefit from the monetary effects of a right realized by the other spouse, such as in the case of a separation, does not have to be penalized by the latter's realization of a right. Thus, when the two spouses separate the claim is made only in respect of the spouse to whom the right realized is due. Similarly, when the two spouses are no longer receiving benefits the assistance due is claimed only from the sole creditor of the right realized or the spouse who had custody of the child to whom the right was due.