"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Thursday, March 2, 2017

Inclusion ... Missing the Point?

The more things change the more they seem to stay the the same.

This time, it seemed to all start sometime after teachers and the Nova Scotia government couldn't come to an agreement for a new contract. Although not mentioned at first, the concept of inclusion and how well it is (or isn't working) eventually popped up. Right on cue. And not just in Nova Scotia; suddenly Newfoundland teachers were weighing in on the topic, too.

But none of this is new news to any of you. You've heard it, seen it read, read it, lived it.

Most of us in the disability community who have had to deal with Nova Scotia's public education system can provide a laundry list of reasons why inclusion doesn't work as well as it should. One of the biggest reasons being a pitiful lack of proper funding and resources, of course.

But again, old news. So why are we here today, you ask.

Good question. But before I answer that, let me tell you why we're not here.
  1. I don't want to talk about whether inclusion as a concept is a good or bad idea. 
  2. Nor am I here to talk about how we could implement it better. 
  3. I'm not even here to bash the Nova Scotia government for practically setting inclusion up to fail in this province. 
No, not today. Today, I have something else in my mind. Today I want to talk about the very definition of inclusion; what it means as a concept; more specifically, what it looks like on the ground in the classroom.

No, not the dictionary definition of the word. Nor am I talking about even the more disability-specific definition of the word.

I am talking about what inclusion means in the classroom. What it really means.

Thursday, February 9, 2017

Round and Round We Go

Here we go again, inclusion is back in the news. Or did it ever leave?

Frankly, I don't know about you, but I am beginning to have been finding it a little old for quite a while now.

Here's the thing folks, what we all (parent, teachers, everyone) need to remember.

Talking about "inclusion" as if the option of getting rid of it is even .. a possibility ... is ridiculous. You can't just sweep it out the door like yesterday's dirt and say "I know, let's try something new".

Remember this quote from Karen Casey back in December?
I don’t think we want to talk about caps for special needs students,” said Casey. “What we need to make sure is that we have the appropriate programming in the right environment for all students.“
As I said on the website, it amazes me how successive Ministers of Education always seem to be able to find the right words and yet, just as consistently, seem unable to implement any meaningful changes to support inclusion. Be that as it may, any whisper of inclusion being an issue for anyone is enough to SCARE many parents. In all honesty and even though I know better  - myself included, at least in my initial from the gut reaction.

So, here it is - what you and I need to remember and preach to others. Sing it from the rooftops.

It goes something like this.



We definitely need more resources to have inclusion work properly for everyone - our children, their classmates and their teachers. No one is going to argue with that. And yet, it's not always a question of resources, is it? Sometimes what is needed is as simple as a good solid dose of common sense.

Between my two children with special needs, I have dealt with the public school system for 17 years, seen a bit during that time.

The balancing of what’s best for every individual student with special needs will, of course, vary (and I think this is where the rub will often lie), but the entire concept of inclusion is legally protected by (from highest to lowest):
  1. the Canadian Charter of Rights and Freedoms [sec. 15]
  2. the Nova Scotia Human Rights Act [ss. 4 & 5]; and
  3. the Nova Scotia Education Act*
You can read more about the interplay between those documents on a practical level here.

For the average parent, however, outside the IPP appeal process, the best bang for your buck can probably found at the provincial human rights level. While notoriously slow, human rights complaints are far from useless - in fact, we have seen some most excellent results from such complaints in the past.

So let them say what they will: Inclusion it not a program.

Inclusion is not a choice.

Inclusion is the law - from the highest levels of the land.

In my mind, the ONLY issue we should be dealing with is exactly how we will define the term "inclusion" for each child - I doubt there will ever any one-size-fits-all solution for students with special needs or that we could ever agree on one.

Thursday, February 2, 2017

Spell it With Me Now ... A-C-C-O-M-M-O-D-A-T-I-O-N-S

For your human rights in employment education and entertainment today, I offer a little story about a pizza shop in Utah that had to pay out 'big dough' for failing to provide reasonable accommodations to an employee with Down Syndrome. 

Actually, from my (and perhaps your) point of view, it's even worse than your that - this wasn't just your garden variety failure to accommodate case - this particular employee had "happily did his job for more than five months with 'an independently employed and insured job coach* to assist him'.” 

Or, at least he had until an operating partner of the company saw him working with his coach, and ordered him fired.

Seriously? Some people companies people will never learn.

See, even though individuals with disabilities living in Utah do not have the benefit of the Canadian Charter of Rights and Freedoms (or, more particularly, sec. 15 thereof) or any of Canada's federal or provincial human rights legislation, they do (as do all residents of the US) have the benefit of the the Americans With Disabilities Act (“ADA”).
The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services...

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.
Sound familiar?

However, unlike Canadians, Americans also have the benefit of the US' Equal Employment Opportunity Commission ("the EEOC"). the organization that enforces the ADA in the employment context; meaning you bring your employment complaint to them and, if they think it is justified, they will sue the employer on your behalf. Making them, kind of, sort of like a human rights commission solely for employment issues.

At any rate, thanks to the fine work of the EEOC, Papa John's has not only 'agreed' to pay that employee damages in the amount of $125,000, but also to “review its equal employment opportunity policies, conduct training for management and human resources employees for its restaurants in Utah, and establish a new recruitment program for individuals with disabilities in Utah.”

The take-away(s) of the story for Papa John's (and all Canadian and American employers) is that

  • employers must provide "reasonable accommodations" to persons with disabilities and "engage in an interactive process to determine if an accommodation is reasonable yet not burdensome"; and
  • a long-term "independently employed and insured job coach" might just be a "reasonable accommodation" for a person with an intellectual disability.

Or, to put it another way, what he said:
“Employers must understand that they cannot refuse to provide an accommodation to individuals with intellectual disabilities. … Employers should embrace workers like Scott who work with such joy. I want employers to know that their obligation to provide a reasonable accommodation includes allowing a job coach at the workplace, if needed, absent undue hardship.”
* Which subject (that being "an independently employed and insured job coach to assist him") could be the subject of a blawg post all by itself, says she, as she continues to toil away at accessing funding for just such a beast for her own daughter.

Wednesday, November 16, 2016

Rate Your Government

Yet another survey, this one from CHAG (Community Homes Action Group), formed a few years ago to gather information and provide help for good housing options for people with developmental disabilities.
In June 2013, the Government of Nova Scotia accepted the work of a joint Community-Government Advisory Committee on Transforming the Services to Persons with Disabilities Program (called the Roadmap). Before that, people with developmental disabilities may find it hard to do many things that most people can do easily. These disabilities can make it hard to learn, speak, tell others what you want, work with others and take care of daily needs. Developmental disabilities are present at birth or develop before 18 years of age. People can have more than one disability. 
CHAG wants to know the opinions of people on the status of services for people with development disabilities three years into the Roadmap. Please help us by filling out a short survey.
We are sending the survey to many people to learn Nova Scotians’ thoughts about the Roadmap. CHAG will create a “report card” that we will share with others. We have two goals: 
1. To make people aware of the critical issues facing people with developmental disabilities and their families; and
2. To encourage government to take action on these issues. 
Do you think the Roadmap has helped or not helped people living with developmental disabilities, their loved ones and service providers? Please tell us what you think. 
You do not have to give your name or tell us about yourself. No one will know that you filled-in this survey. Nothing about who you are will be kept with your answers. Please answer as many of the seven survey questions as you can. You can stop at any time. Clicking the link says that you know your answers will be kept private and that you agree to try the survey.
Please complete this survey by December 1, 2016. Make your opinion count!
As a community, I firmly believe that we really need to hold the government's feet to the fire on the issue of the Roadmap.

After all, if not us, then who? Please take the survey.

Thursday, November 10, 2016

Breaking News from the National Self-Represented Litigants Project

You might recall me going on a bit in the past about this beast known as "unbundled legal services".

That's what I'm talking about.

But much more importantly, that's what I would be very happy to talk with you about.

Wednesday, October 12, 2016

Good News From our Friends at reachAbility

Well, good news if you live in the Halifax area, anyway. The rest of us just might be out luck.

reachAbility will be offering free form-filling assistance at two drop-in locations in the Halifax Regional Municipality, as well as by appointment in their Halifax office. The clinic is said to be designed to help people through the process of any application, form or document they may need assistance to complete.

These are some of the things the service can provide:
  • Assistance filling out simple applications
  • Assistance filling out government forms
  • Assistance filling out court forms
  • Help finding legal information and other resources
  • Providing referrals to other legal, social or community programs

Check out the reachAbility website for times and locations.

So, as I said, a good deal if you live in the right area. Perhaps the rest of us need to be lobbying to have such services offered in the ROP.

* ROP = Rest of the Province

Monday, October 10, 2016

The Disability Support Puzzle Changes Again

Some of you might recall me posting a little over two years ago when the Dept of Community Services first posted the Disability Supports Services for Persons with Disabilities (SPD) Program Policy online. The document covered both financial eligibility for the programs under the SPD umbrella and the Basic and Special Needs Policy. So good stuff, that.

Or, at least I thought so, until I noticed the other day that we now also have a Level of Support Policy, dated May, 2014, which appears to supplement the 2012 Policy. Which, yes, means I am a little out of date, but, really, if you knew about it, why didn't someone tell me? Personally, I find that it can be awful hard to keep with life these days.

But back to the point and that is this - this Levels of Support Policy appears to be significantly different than the 2012 Policy.

While the Disability Supports Program Policy (2012) mostly concerned itself with general eligibility requirements and SPD DSP support options (aka Places to Live), such as

  • Direct Family Support;
  • Independent Living;
  • Alternative Family Support;
  • Residential Care Facilities;
  • Group Homes;
  • Developmental Residences;
  • Small Options Homes;
  • Adult Residential Centres and
  • Regional Rehabilitation Centres

the new Levels of Support Policy focuses much more on "support planning" and the five "levels of support", along with the requirements for each.

If you're not "in the know", when an individual transitions to the adult system they are re-assessed and given a Levels of Support rating, from One to Five.The Support Levels look something like this:

  • Level One - Minimum Support
  • Level two - Moderate Support
  • Level three - High Support
  • Level four - Enriched Support; and
  • Level five - Intensive Support

What form of residential support "program support options" are available to that person will depend on what Level of Support they have been assessed as requiring.*

To come up with said Support Level, the assessment looks at
  • Activities of Daily Living;
  • Instrumental Activities of Daily Living;
  • Health Status;
  • Medical Conditions;
  • Behaviour; and
  • Safety

The Levels of Support Policy also deals with other issues, of course, such as
  • medical care and behavioral support requirements; 
  • acute nursing services; 
  • chronic medical conditions; 
  • end of life care; 
  • behavioral support parameters; and 
  • something called "discretionary case management regarding a program option". 

Of course, last, but certainly not least (and never to be forgotten) sits the the appeal process.

Intrigued? Perhaps you best check it out for yourself.

* You might want to consider asking for a copy of the Assessment after it's complete. You will likely be denied, but that's no biggie - just make an application under the Freedom of Information Act. Don't ask me why they make us jump through the hoops, but they usually do. At any rate, I think it's worth having a copy of this (and further reassessments if the Support Level is changed) just in case. Here, this might help.

** For a complete list (with links) of all policy documents under the Disability Supports Program, go here.

Monday, October 3, 2016

Most Valuable Info

Show of hands please. 

Have you ever noticed that the most valuable information ever given to you on this journey has been received from another person in the special needs community and, sadly, not from those that are paid to assist our families? I know that's definitely how it was when my daughters were young and sadly it doesn't seem to have changed any.

Unfortunately, getting information in this matter is always hit and miss. That's the reason I believe that it's ivitally mportant for each of us to share whatever information we come upon that might help others. 

In that vein, I offer you "A Funding Source":
Just wanted to reach out to you all and let you know about a funding source that we stumbled upon that has turned out to be shockingly good. I thought some of you may be interested in this as our kids are all nearing adulthood.

Housing NS has a program called the RRAP (Residential Rehabilitation Assistance Program) for landlords. It is not based on your income but on the income of the renter. Their income must be less than $32,000 for your to qualify. The goal is to create long term housing for low income Nova Scotians,($24,000 available) and there are more incentives (additional $16,000 available) to create an accessible space.

Since*** now receives the Disability Support Program monthly allotment from Community Services, we decided to act as his landlords and create an apartment for him in our basement as a transition space for him to practice independent living skills and allow us to bring in more outside help in a way that isn't.  We were going to do this anyway but this program made it possible to do it much better than we could have on our own.

Turns out we were eligible for $40,000 in funding to do this. This is a forgivable loan that we do not have to pay back as long as **** lives with us for 8 years, or if he moves out we would need to rent it to another low income disabled person until the 8 years is up. The range of forgiveness is 8 – 15 years depending on how much of your own money you put into the project over and above the money they give you.

It is a lengthy process and involves loads of paperwork, zoning, building permits, inspections, and the ability to fund the project until they reimburse you once it is complete. You also need to register the money as a mortgage on your house which involves a lawyer. That being said it is well worth it, and we are nearing completion of ****’s apartment right now, which we designed to be accessible for him now and for how things may change in the future. Didn’t want to jinx it until we got the funds but it is all settled now so thought I would spread the word.

I would be pleased to answer any questions any of you might have and guide you through the process that worked for us. 
I must say, it does sound intriguing.

Tuesday, August 9, 2016

Let's Talk Landon Webb Guardianship, Part V

You might recall a post from back in February of this year, where I questioned whether or not that was a good time for a family to pursue legal guardianship, given what was on the horizon with the Landon Webb case. I know many of you are now well aware as to exactly how Landon's case ended.

For several years, in the presentations I have given around the Province, I have repeatedly called for a reform of the Incompetent Persons Act, noting that it is an "all or nothing, one size most definitely does not fit all" sort of deal. Apparently the court agreed.
[22] The Incompetent Persons Act takes an all or nothing approach. It allows for no nuance. It does not allow a court to tailor a guardianship order so that a person subject to that order can retain the ability to make decisions in respect of those areas in which they are capable.
Just to be clear, there were absolutely no surprises here with respect to the court's finding that the legislation, as written, is unconstitutional. Not only did Landon's parents acknowledge and agree that the Act was unconstitutional, but, from almost the beginning of this court challenge, the Department of Justice had taken the position that it would not oppose the constitutional challenge and was committed to reviewing the current Act with a view to improving it. As noted in the Webb decision, that was a "remarkable thing", as governments rarely concede that legislation is unconstitutional. In the words of the court, "It happens only where there is a clear and compelling case, such as this".

Leaving us with the question ... What now?

First, let's take a look at what did not happen; what the decision in the Webb case does not mean. To put it simply, all current guardianship orders under the Incompetent Persons Act remain valid and the decision regarding the constitutionality of the Incompetent Persons Act will not affect my current Guardianship Orders.

Now that we know what didn't happen, let's take a look at what did.

Yes, Landon successfully challenged the constitutionality of the Incompetent Persons Act. To put it simply, on June 28, 2016 (as expected) the court found certain provisions of the legislation unconstitutional, but granted one year for the Act to be updated.As noted above, all orders remain valid during this period.

The government tells us that it is currently researching and consulting, with a view to crafting a new law on substituted decision making. Which shouldn't be too difficult to do, considering the help they previously ignored were given. In fact, you might recall that the Law Reform Commission was kind enough to draft an entirely new piece of legislation for the government in 1995.

Be that as it may,this means that applications can still be brought under the current legislation until either a new law is brought in or the one-year time period has expired (which would be June 27, 2017).In addition, the process of review that always existed under the Incompetent Persons Act (contrary to what some would have you think) is still available.

Now for the really important part for your family:

Friday, March 25, 2016

The MacKenzie Friend - A Welcome Development

I'm happy to share a great idea to assist self-represented litigants (SRL) in court, one which I must admit I was totally unfamiliar with until now - the MacKenzie Friend.

A McKenzie Friend is a personal supporter, chosen by the SRL, who sits “upfront” and can take notes, pass documents, or even just sit there as moral support. They do not address the court or offer any legal advice, but they can help the SRL to stay focused and calm during a hearing, and can debrief with them after.

This is important because not only are many SRL intimidated with the court process and having to appear in court, they often find it difficult to accurately and fully recall what they were told by a judge because of courtroom nerves.

Although the concept originated in the UK, it is now becoming more widely supported in Canada. You do need to ask the court for permission to have a MacKenzie Friend sit up-front with you, but chances are good you will receive a positive response.

Even better than knowing you can request to have a MacKenzie Friend with you in court is the newly-created Guide, "The McKenzie Friend: Choosing and Presenting a Courtroom Companion”. This new Guide was created by written and researched by Judith DaSilva with Julie Macfarlane (she of the National Self-represented Litigant Project fame).
The new Guide – which includes a Worksheet with a series of questions for SRLs to work through in order to assess their needs, and then to identify a person best able to assist them (and least likely to raise the ire of the other side) is available on our website for free downloads. We would like to strongly encourage not just SRLs but also agencies, paralegals and lawyers serving the primarily self-represented to take a look at this resource and consider making it available to clients.
You can read more about the origin of the MacKenzie Friend, as well as the process leading to the creation of The McKenzie Friend: Choosing and Presenting a Courtroom Companion here.

Honestly, if I were any of one of you and I was considering heading off to court without a lawyer*, I would be on to this in two minutes flat.

Did I mention that it's free?

* Yes, that would include a situation where 1) I had used a lawyer to help me prepare for court but was heading into the lion's den courtroom alone or 2) I was making a guardianship application with the help of the Nova Scotia Legal Guardianship Kit.

Monday, March 21, 2016

Let's Talk Landon WebbGuardianship ~ Part IV

Long, long ago in a galaxy far, far away (in other words, before I had a child with a disability), I was involved with grassroots political lobbying for children in third world countries. Doing that work, I became very attached to a quote from Stephen Lewis, then Canada's Ambassador to the United Nations, to the effect that eventually the day would come would societies would be judged not by their industrial or economic output, but by how they treated their most vulnerable citizens.

I approach the issue of supported decision making as both a parent and a disability lawyer. I've read a fair bit of what Michael Bach, (Vice President of the CACL) and others have written on exactly how supported decision making would work. I found it fascinating. But, quite frankly, I also found some of it quite scary.

I was particularly struck by a response given to a statement made by the Ontario Select Committee on Mental Health and Addictions that the "right to autonomy must be balanced with the right to be well". Part of CACL's response to that statement was that there is no recognized right to be well in domestic or international law.

Is this the path we want to go down? Really?

At any rate, I beg to differ - Section 7 of the Canadian Charter of Rights and Freedoms guarantees all of us the right to "life, liberty and security of the person". I would have no trouble arguing that that includes a right to be well. I recall listening to an amazing presentation by Dr. Condoluci at a CACL Conference a few years back, where he spoke of research showing that cross-culturally parents want their children to be healthy, happy and have longevity. I rest my case. For now anyway.

Please understand. I love the concept of supported decision making. In the abstract. But my concern is exactly how we are to balance the right to autonomy (that you, I and everyone else demands and deserves) with the duty to protect where decision-making abilities are limited, needed supports are lacking or people are vulnerable to abuse or neglect.

I am the first to admit that there are huge problems with the other substitute decision making options available, particularly guardianship. You might just have been living under a rock if you haven't come to realize over the course of the last several months that Nova Scotia has what is likely the most archaic, restrictive guardianship system in the country.

Sadly, we currently have a system that labels individuals as competent or incompetent without recognizing that people can be competent in some matters and less so in others. It's a very blunt instrument that doesn't allow for supported decision making and reinforces the perception that people with intellectual disabilities don't have capacity. It's a winner take all, one size most definitely doesn't fit all, take it or leave it kind of system. Frankly, it leaves a LOT to be desired. I am happy to say that, fortunately, that should soon change ("soon" being a relative term, of course).

As I said, I approach the issue of supported decision making from the perspective of both a parent and a lawyer. And the real question for me is whether and how much it is acceptable for society to act to protect individuals with intellectual disabilities.

Sunday, February 21, 2016

Is This the Right Time to Apply for Guardianship?

Picking up on our ongoing conversation about guardianship, I have little doubt that the law concerning adult guardianship in the Province is about to change. Landon Webb has challenged the constitutionality of the Incompetent Persons Act and, although no one can say for sure what the outcome will be, I believe it is highly likely that we will end up with a new piece of legislation governing adult guardianship. Which, actually, will most likely be a very good thing.

However, until either that new legislation materializes or the status quo is confirmed, a person might want to think carefully about when might be the best time to bring a guardianship application in their particular circumstances.

This is just my take, but, given the media play that Landon’s situation has received, I think that (with the exception of the clearest cases) there is a good chance that the courts could be a bit hesitant to grant an adult guardianship order until a decision is made in the Webb case.

In the case of a very low functioning adult, there is probably no reason to hesitate to bring such an application. However, when it comes to higher functioning adults, absent some sort of emergency reason to bring an application RIGHT NOW, it might be best to wait until we see how everything shakes out.

With respect to the Nova Scotia Legal Guardianship Kit, should the law change, it may well be necessary to make corresponding changes to the Guardianship Kit to comply with the new law. I can assure you, however, that should that occur, it is absolutely my intent to update the Guardianship Kit and continue to make it available as an option for families in the Province.

Saturday, January 16, 2016

Let's Talk Landon Webb Guardianship ~ Part III

Does Nova Scotia's guardianship legislation needs a MAJOR overhaul? Absolutely.

Is it appropriate to throw out the baby with the bathwater and remove the option of guardianship completely from provincial law? While some in the disability community might respond in the affirmative to that question, you will find me on the side of those strongly shaking their heads, NO.

I'm not naive. I realize that many take the view that guardianship should never be a legal option because it “discriminates”against challenged individuals and takes away their right to make choices
for themselves.

In fact, the Canadian Association of Community Living (CACL) has characterized guardianship as "an ancient mechanism that was constructed without consulting people with disabilities" and takes the position that "supported decision-making" is not only preferable to guardianship, but given that "guardianship laws assume that some people do not have the capacity to make legally binding decisions" has invited us to "adopt a paradigm shift in which everyone has an equal legal capacity, without distinction based on disability."

What is Supported Decision Making (SDM)?
SDM means that a person can accept help in making decisions without relinquishing the right to make those decisions. With SDM, freedom of choice is never violated. The wisdom of a person’s choices is not challenged, allowing everyone the dignity of risk.

In theory, SDM helps a person to understand information and make decisions based on his or her own preferences. The feeling is that while guardianship laws theoretically protect people with disabilities from abuse, in practice they open the door to abuse. Some believe that guardianship facilitates institutionalization; the guardian can easily give consent even when the person opposes being institutionalized. One decision by the authorities and a person loses the right to decide where to live, loses the right to vote, the right to choose who to marry, the right to start a business. This results in living in a humiliating and degrading way.

We are told that the fact that others might view a decision as foolish or ill-advised doesn't mean a person in incompetent. The courts speak of the right to be KNOWINGLY foolish and the right to VOLUNTARILY assume risks; some case law speaks of the right to live life on the edge. Which is all well and good.

Let me say that I agree with a lot of the concerns set out above. In fact, speaking only as a parent, I love the concept of SDM in the abstract. My adult child being given that the information she needs to make responsible adult decisions.

What's not to love?

In Part IV, I will explain my concerns with SDM in the real world.

Thursday, January 7, 2016

Let's Talk Landon Webb Guardianship ~ Part II

I must admit that this was most definitely not what I had in mind for Part II of this series, as I had have no intention of making any further comment on Landon Webb's personal situation, However, comments such as the below from the editorial in yesterday's Chronicle Herald simply cannot go unanswered.
We are hopeful that the courts will rule that, no matter what Mr. Webb’s disability, he wants to live in society and should have the right to do so. No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community.

No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community?

I can see thousands of individuals with disabilities and their family members across the province shaking their heads in disbelief ... wondering why in the world this thought had not occurred to them, too.

At any rate, I sincerely hope both the Nova Scotia Human Rights Commission and Joe Q. Public can keep that concept in firmly in mind when the human rights complaint brought by three residents of Emerald Hall is heard later this year.

Yes, this is the very same human rights complaint where individuals had been forced to live in a psychiatric hospital for up to 13 years (with no end in sight) for the simple reason that the Department of Community Services either couldn't or wouldn't provide them with placement in the community.

The very same complaint where the investigation conducted on behalf of the Human Rights Commission found that “the existence of discrimination cannot be denied", yet, incredulously  the investigator recommended that the complaint be dismissed. That would have been the end of the matter had the complainants' lawyers not fought on and brought the matter before the Commission for a review, arguing successfully that it should go forward to a hearing.

News Flash #1: Individuals with disabilities who cannot live in the community without support need someone to provide them that support.

News Flash #2: Caregivers don't work for free - someone has to pay them a living wage.

And just who would that "someone" be? For the uninitiated, it would be the provincial government in the form of the Department of Community Service's Disability Support Program.

But what happens if you are forced to rely on a system where the wait list for residential placement currently sits at over 1000 people?

What are individuals with disabilities and their families to do when they want nothing more than to live in the community but simply can't move out of their family home, Emerald Hall or an institution because the Dept of Community Services won't provide the funding for the type of support the person
requires to be successful in the community?

Could there be anything the public could possibly do to help?

Oh, wait. I know. One really helpful move would be to bash an individual's family members for the continuation of institutions in Nova Scotia.
I have yet to meet anyone in the disability community who wants to see their family member housed in an institution. Have you?

* You might have noticed that the sarcasm was a bit thick in this post. That's something I generally work very hard to avoid, but sometimes a person simply has to use whatever tools are at their disposal to make people see that a spade really is a spade.

 Part III will, as promised, will examine take a look at the alternative being presented to guardianship at the moment - supported decision-making.

Wednesday, January 6, 2016

A New Day

Some might recall me occasionally mentioning that the reason A Primer on Special Needs and the Law has never had a blog roll is because I have never come across any Canadian legal blogs that I
felt would be relevant to my readers.

Well, today that changes. May I introduce:

Mr. J.P. Boyd and his blawg, 

Mr. Boyd presently serves as the executive director of the Canadian Research Institute for Law and the Family, prior to which he practiced family law in Vancouver, British Columbia as a litigator, mediator, arbitrator and parenting coordinator.

To quote Mr. Boyd, "The information provided in this blog relates to the laws and dispute resolution processes of Canada."

Although not directed to legal issues faced by persons with disabilities, per se, the blawg appears to have a nice mix of material oriented to helping self-represented litigants and information on initiatives underway across the country to increase access to justice.

* For anyone wondering, no, I have not forgotten my promise to continue our discussion in the "Let's Talk Landon Webb Guardianship" posts. All things come to those that wait.

Wednesday, December 16, 2015

Let's Talk Landon Webb Guardianship ~ Part I

Oh, the irony.

Those who know me at all (or have been to any of my presentations) know how I feel about Nova Scotia's guardianship legislation, the Incompetent Persons Act. To call it old or out-of-date would be more than flattering and undeserved. In fact, antiquated would be a much better word.  I can say, without a shadow of a doubt, that nearly every other province in Canada does a better job than Nova Scotia with their guardianship legislation.

You see, although most other provinces provide for the appointment of a guardian of the person (to make personal care
decisions for the adult) and a guardian of the estate (to make financial decisions for the adult), in Nova Scotia full powers for both personal and financial decisions are given to the guardian, even if the adult is only in need of one type of decision-making assistance. It’s an all or nothing, one size most definitely does not fit all, take it or leave it kind of deal.

There's nothing new here; in fact, this is very old news. As far back as 1993, the Law Reform Commission of Nova Scotia publicly recognized that the Incompetent Persons Act was no longer appropriate and suggested that a new law be passed that would reflect certain fundamental principles, like
  • not imposing guardianship simply because a person makes a decision that others do not understand or agree with;
  • presuming everyone to be competent to make their own decisions unless it is proven they are not; 
  • inquiring whether other less restrictive alternatives have been exhausted;
  • focusing on the adult’s abilities, allowing them to participate in decision-making as fully as possible in as many areas as possible; and
  • taking into account the wishes of the adult (with the court deciding how much weight, in the circumstances, should be given to those wishes).

Two years later the Law Reform Commission actually drafted a new proposed Adult Guardianship Act. The heavy lifting was done for the government of the day. The legislation had been drafted. Cue the applause.

However, instead of a new Act, in 2007 the legislation was amended to remove terms like “lunatics” and “insane persons” and replace them with the somewhat more politically correct “incompetent person”, which some might find, in and of itself,to be rather ironic.

And yet, that is not the irony I am referring to.

Monday, November 30, 2015

Petition to Implement a National Assistance Program for Canadians with Disabilities

I don't recall ever asking my readers to sign a petition and, if I have, it would be very rare indeed. But there is a very important Petition directed to our Federal government up at Change.Org and I
would ask you to please check it out and sign it.

It's well part time that Canada met its moral and legal obligations to provide all of its citizens with disabilities with the assistance they need to access life in the community. Mobility aids are just one small, albeit very important, type of assistance the federal and provincial governments should be helping with.

So, please, it will take you all of two minutes - sign the Petition.

Saturday, November 21, 2015

No Need to Panic ...

Just a quick note to let you know that, for many of you, there's no need to panic about the upcoming changes to the Income Tax Act concerning trusts and how they are taxed. Some of you might be aware that in 2016, the graduated taxation rate for testamentary trusts (meaning trusts created by a Will) will be replaced with a top marginal tax rate.

The bottom line relevance of this for us is that the way the world currently works is that when money is placed in a Henson Trust (aka an absolute discretionary trust), the income from that inheritance is taxed at a beginning (lower) marginal tax rate. This is a special stipulation that only applies to trusts created by a Will (testamentary trusts).

This is all about to change in 2016, however; when testamentary trusts will be taxed in the same way all other trusts are - meaning that they will be taxed at the top marginal tax rate. When you think about the inheritance you are leaving a challenged family member, you really don't want to see that eaten away by the trust being taxed at the highest taxation rate. After all, who needs that money more - the federal government or your family member?

But the reason I say that there is no need for most of us to panic is that the government has included a special exemption which states that if the beneficiary of the trust (your challenged family member, for example) qualifies for the Disability Tax Credit ("DTC"), the trust can be approved as a Qualifying Disability Trust and, as such, will continue to be taxed at beginning marginal rates, just as it is now.

There are a few more catches, of course, such as, for example, the fact that an individual can only have one Qualifying Disability Trust, which could result in some unexpected consequences if, for example, more than one family member leaves the person an inheritance in their Will. Please, always remember to check with your accountant or tax adviser, for information specific to your particular situation.

Moving past that, regular readers will recall that I have preached before as to the importance of the DTC,as that not only does it provide a nice tax break for the individual or their family, but the DTC is the very same tax credit that allows an individual to qualify for a RDSP. The math there is pretty simple ...


Going back to the rules around the taxation of trust, it's important to realize, that the mere fact that your child (or other family member) qualifies for assistance through the Province's Services for Persons with Disabilities Disability Supports Program does not mean they automatically qualify for the DTC - and, even if they do qualify, it's highly unlikely that any government official is going to come along and suggest you apply for it.

In order to qualify for the DTC, the federal government must find that the person is "markedly restricted" in the activities of daily living. The wording of this requirement seems to be continually evolving, but trust me when I say that it is always worth the effort (and re-effort, should you be turned down) for a person to apply (and appeal and/or reapply, as necessary) for the DTC, as it has the potential to open many doors, as we've just seen with these new changes to the taxation of trust.

So what are you waiting for?

Monday, October 19, 2015

CanuckKabuk Law

As I've noted before, although all kinds of links to all kinds of interesting information be found in the  sidebar, I have never had an official  blogroll at A Primer on Special Needs and the Law - the main reason being that there are very few Canadian legal-disability blogs out there, or at least very few that I'm aware of.

But today I came across "Kabuk Law" (no, I have absolutely no clue where that name came from although I can tell you that they bill themselves as "the first interactive platform for seeking legal advice in North America, enabling consumers to source desired providers and book appointments online" and there is an interesting little story behind how the site came to be) that appears worthy of sharing.

This is the link to their blog, where some interesting articles in their own right can be found. This will take you to their main page.

So what's it all about, you ask?

Basically it's a CANADIAN site that attempts to connect the public (meaning people like you. And you. And yes, you too) with lawyers. Pardon my excitement, but finding truly Canadian sites like this is indeed rare.

So check them out. Even if you're not in need of legal services at the moment, it's never hurts to be a Boy Girl Scout and be prepared. Check out their blog, too; as I said, there looks to be some very interesting stuff there, including a link to a survey asking people about their experiences looking for legal advice or (gasp) even an actual lawyer.

It would appear that they actually want to make getting legal advice easier, right here in Canada. Who would have thunk it, eh?