"Let go of what has passed. Let go of what may come. Let go of what is happening now. Don’t try to figure anything out. Don’t try to make anything happen. Relax right now, and rest."
~ Tilopa

Monday, July 20, 2020

Hoping for Good News [Round Two]

I'm hoping (and praying) for some good news today.

Some night recall the Federal government's "thwarted" attempt in June to provide a one-time non-reportable payment to individuals with disabilites to "navigate the effects of the [COVID] outbreak" and "assist with additional expenses incurred during the pandemic". "

Thwarted" by party politics, it was.

Today, they return to the House of Commons for Round Two:
Today, the Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion, announced that the Government of Canada intends to propose legislation that would make the benefit available to more people and expand the one-time payment to include approximately 1.7 million Canadians with disabilities
You will qualify if you receive any of the following benefits/services:
  •  a Disability Tax Credit certificate provided by the Canada Revenue Agency;
  • Canada Pension Plan disability benefit or Quebec Pension Plan disability benefit; or
  • disability supports provided by Veterans Affairs Canada.

This too is good news in that eligibility criteria have been expanded. I'm fairly confident that the original proposal would have only provided the payment to those in receipt of the Disability Tax Credit.

Here's hoping and praying that the Department of Community Services doesn't claw this one back too (as they did with the CERB).




ROUND TWO [bell rings]

Tuesday, May 12, 2020

Lessons Learned: The DTC Appeal Process [Part III]

As noted in my last post, applying (or re-applying) for the DTC involves having the relevant medical
practitioner provide the required information on the T2201 form. Depending on the extent of the
individual's challenges, you might want to consider having the medical practitioner send along an additional letter or report with the application form.

I.   The Appeal Route: Roads Not Taken?
There are three possible methods to challenge an initial denial of he DTC; namely
  • reapply for the DTC;
  • request an informal review; and/or
  • file a Notice of Objection (formal appeal).
Although you can re-apply at any time, unless something has changed (or you now have significant new medical information to provide) with the person's situation, you are probably just as well (or better) off to proceed through the appeal route.

Whether proceeding with an informal review or a Notice of Objection, you will want to highlight
specific information found in the T2201 form and any included correspondence that shows how the effects of the person's impairments on their ability to perform the Activities of Daily Living. Remember, you are now providing  information to an individual who has no prior knowledge of the situation and must highlight for him or her the facts that you believe makes the person eligible for the DTC.

You have one year from the date of the denial to request an informal review but only 90 days to pursue the more formal Notice of Objection. If this timing sounds illogical to you, I agree but it is what it is.

Unfortunately, this timing issue can make things a little more complicated. As it could take anywhere from six months to two years to receive a response to your request for an informal review, you might well still be waiting for that response as you approach the one-year time limit to file a formal Notice of Objection. For this reason, you need to document your timelines carefully and make sure you file a Notice of Objection two or three weeks prior to the one-year time limit, even if you haven't yet received a response to your informal review.

II.  The So-called Requirement of 'Additional Medical Information"
Whichever route you take, it's important to include any new medical information that you have not already supplied, such as new or updated medical reports, or an additional letter from a medical practitioner who is familiar with the situation. This additional information will clearly focus on how the impairment affects the activities of daily living.

However, it's important to realize that although you can (and should) supply any additional helpful medical information you can, you are most certainly not obligated to do so.

This is extremely important because the CRA appears to have taken the ludicrous (and totally unsupported) position that it CANNOT and WILL NOT review any application unless additional medical information has been provided.

This is exactly what occurred when I requested an informal review of the denial of my youngest daughter's re application for the DTC and it's flatout not true. This position violates not only the
CRA's own Taxpayer Bill of Rights, but also the broader legal principle that when appealing a government decision you have the right to have that decision reviewed by an independent party (someone not involved in the original decision) whether or not you have new information to provide.

Whether a review or appeal, should you receive such a response, know that the CRA is simply up to  its old tricks. Unfortunately, too many people don't realize this and once they receive a letter denying their request for a review, they simply move on. Thank goodness I (and now you) know differently. If you receive such a response, simply move on to the next level of appeal and file a Notice of Objection.

III. The Notice of Objection
The procedure for filing a Notice of Objection is set out here, along with information as to the  documentation required. Note that there is no mention of a requirement to provide any additional medical information, only the "relevant facts and reasons for your objection" and "copies of all documents that support your objection". This supporting documentation will often be as simple as the T2201 form you originally sent to the CRA (along with any additional material that might have been attached).

It appears that the CRA is effectively requiring the majority of DTC applicants to reach this level before providing any semblance of due process. Unless your case is an obvious slam dunk (as occurred with my daughter and other situations I've recently become aware of), you can expect to receive a phone call from the authorized CRA officer prior to the the final decision being made.

V. The Tax Court of Canada
Should your Notice of Objection be dismissed, you have one final avenue of appeal to the Tax Court of Canada. However, I cannot recommend you take on this level of appeal without legal counsel.

VI. One Final Step: the Service Complaint
You also have the right to lodge a service complaint with the Office of the Taxpayer's Ombudsman. Please don't write this step off as a waste of time.

One of the issues noted in the "2019 First Annual Report of the Disability Advisory Committee: Enabling access to disability tax measures – Report in brief"was that the CRA doesn't
adequately share information about the results of objections or appeals with its employees, which negatively affects the Agency's ability to  improve its performance. Assessment decisions that are overturned  may signal inconsistencies in assessment or objection processes and sharing such information should reduce the numbers of objections and appeals.

The  CRA agreed and has explained that it is committed to ensuring that objection and appeal decisions are shared with all assessing and audit areas.

Let's do our part to give them a little shove push in that direction.

* With a tip of the hat and many thanks to Dan Paladin of Padalin Disability Tax Credit Solutions.


Monday, May 4, 2020

Lessons Learned; Appealing a Denial of the Disability Tax Credit [Part II]

In the last post, we looked at some of the many issues surrounding the eligibility requirements for the Disability Tax Credit ("DTC") and I promised to discuss the DTC appeal process, including some lessons I recently learned in successfully appealing the denial of my daughter's re- application for the DTC.

However, before doing that, I would like to discuss some of the tricks the CRA has been using to deny eligibility in the first place, hoping that arming you with this additional information might well help you be more successful in either your initial application or any required appeal.

Even though the actual eligibility requirements haven't changed, the interpretation of those provisions have become significantly tighter such that CRA agents are now imposing stipulations not prescribed by the legislation. Put another way, the CRA is (and one must wonder if intentionally) making errors in law. After all, it's not like these issues haven't been previously brought to its attention. Many. Many. Times.

There was the 2017 issue with respect to the eligibility of applicants with Type 2 diabetes:
Last May, the CRA told its staff not to honour claims for the disability tax credit. The agency had concluded that Type 1 diabetics were not using 14 hours of their time each week to manage their insulin therapy, which was the minimum required in the agency’s view.
Once disability advocates learned of that move and went public, the CRA promised to revert to the previous clarification letter (basically meaning they " took it back") and agreed to review all denied applications dating back to the date the revised rule was put in place.

Then there are the CRA guidelines* that require that impairment due to mental illness be present continuously for 90 per cent of the time. In addition to the fact that the 90% figure is found only in the CRA policy and has no basis in law, the very nature of mental health disabilities means it is often “temporary, episodic and changing in nature, with symptoms varying in severity and duration over the course of peoples’ lives”. Sadly, data from the fiscal year 2016 to 2017 showing a 53% increase in the number of rejections of applications from people living with mental illness is no surprise.




Being Proactive with More Difficult Applications
Applying (or re-applying) for the DTC involves having the relevant medical practitioner** provide the required information in the T2201 form. Although this process mostly involves checking off
affirmative or negative responses and filling in a few blanks, there are some places for additional information to be wrote in.

Don't let the fact that the T2201 form states that "working, housekeeping, managing a bank account, and social or recreational activities are not considered basic activities of daily living. Basic activities of daily living are limited to walking, speaking, hearing, dressing, feeding, eliminating (bowel or bladder functions), and mental functions necessary for everyday life" deter you. Ignore and carry on.

For individuals with obvious severe disabilities, the form,itself, should likely be sufficient. However, depending on the extent of the challenges faced, you might want to consider having the medical practitioner send along an additional letter or report with the application form.

As we all know, some disabilities are much recognizable and relatable to the uninitiated than others. For this reason, it is wise to proceed with a little more care if (for example) the applicant has a learning disability or a  number of smaller impairments in many activities of daily living ("ADL"). The challenges brought about by some disabilities take more time and detail to fully explain and in other situations, although the level of impairment in any particular ADL might not meet the required degree of impairment, often the cumulative effects in all areas of daily living might qualify as a "significant restriction"(the equivalent of being markedly restricted in one basic ADL).

In such situations, I recommend you book an additional or lengthier appointment with the medical practitioner so you can provide additional information (both for the benefit of the medical practitioner and the CRA) as to the extent of the effects of the individual's daily functioning. We're looking for practical examples of how the individual's particular challenges affect their day-to-day living as that information is critical when it comes to meeting the eligibility requirements.

A few very important things to remember here:
Before doing this, make sure that you have taken the time to compile in written form  the details you want to provide; although you will verbally pass this information on to the medical practitioner, you want to make sure you don't miss anything and you never know which piece of evidence might be sufficient to break the CRA's back.

Depending on the extent of the individual's challenges and insight, it might well be worthwhile to compile this list with the help of the individual and have them participate in the appointment. Although the process of getting these practical examples from my adult daughter often felt like "pulling teeth", with perseverance and persistence, we were able to provide the psychologist with an impressive list of practical effects that she had no other way of knowing, even as the "treating professional".

Further, be aware of the language used in any such written material - perfectly normal words such as "could", "might" or "should" can and will be relied on by the CRA to deny eligibility. That's part of the reason why real-life examples of how the challenges impact the person's daily life are so critical - it totally reduces the need for speculation (which can and will be used against you).

Stay tuned for a further detailed discussion of the DTC appeal process and the pitfalls to avoid.

* Note that "guidelines" do not have the legal force of law. To be valid, regulations, "guideline" and "policy" cannot contradict the enabling legislation.

** The appropriate medical practitioner will be a medical doctor, nurse practitioner, optometrist, audiologist. occupational therapist, physiotherapist, psychologist or speech-language pathologist, depending on the disability involved; however, whenever possible I recommend using the most specialized professional in the relevant field (for example, it is better to use a neurologist than a family doctor).

Tuesday, April 21, 2020

Lessons Learned: A Review of the Disability Tax Credit; Part I

There's much going on and so much wrong in the world today, that it's hard to even know where or how to start. In all honesty, right at the moment, I'm finding it hard to move off the couch after my daily date update with Justin.

But life (more or less) goes on and for the past few months I've wanted to update a topic we haven't discussed in quite a while - the Disability Tax Credit ("DTC"). When we first discussed the DTC in 2007, I explained how and why it's so much more than just a tax credit and I would recommend refreshing your memory on that. 

Not only does the DTC give a nice size tax credit to an individual with a "profound impairment" resulting in them being "markedly restricted" in any of the basic activities of daily living {"ADL"), it is the gateway to access other federal tax programs and benefits, such as the Registered Disability Savings Plan ("RDSP") and the Child Disability Benefit (a supplement to the Child Tax Benefit).

The full eligibility requirements for the DTC can be found here.

Bottom line; the DTC can be extremely important for you and your children (as applicable).

However, the DTC is notoriously hard to receive and unfortunately, that situation has only worsened over the past few years.
Only 40 per cent of the more than 1.8 million people who live with severe disability in Canada use the federal disability tax credit (DTC). And the mind-numbing rules devised by the Canada Revenue Agency to assess eligibility for the credit are likely one of the main reasons for such poor uptake.

That’s the conclusion of a recent review of the credit by the University of Calgary’s School of Public Policy, which also cites low awareness of the credit and limited understanding of its potential benefits as possible causes for low participation rates.
In fact, the situation is so bad that many who should qualify don't even bother to apply.

Although the wording of the eligibility requirements set out in the legislation hasn't changed significantly, the way those provisions are being interpreted by the CRA have become so tight that they verge (and often cross the line into) ridiculous.

In 2019, a government panel tasked with examining the federal tax measures offered to Canadians with disabilities made several recommendations to improve the DTC situation for Canadians.

To state, as the Panel did in the "2019 First Annual Report of the Disability Advisory Committee: Enabling access to disability tax measures – Report in brief" that "receiving the credit can often be an uphill battle that requires navigation of a complex set of requirements in the application phase" is a huge understatement.

One of the recommendations made was that the CRA change the requirement that a person must have a "severe or prolonged impairment" that restricts an activity of daily living that is present “all or substantially all the time.” An applicant will be considered "markedly restricted" in at least one of the ADL if "all or substantially all the time", he or she cannot (or takes an inordinate amount of time to) do one or more of the basic ADL.

This is where it gets interesting - although the legislation does not specify a percentage to define "all or substantially all of the time", the CRA in its infinite wisdom has decided that a  person must be markedly restricted at least 90% of the time, something that has NO basis in law.
The 90 per cent interpretation is problematic for those with mental disorders and for those with disorders that are characterized by episodic symptoms,” said Dr. Karen Cohen, co-chair of the committee.
There were numerous other recommendations, including that the CRA make the application form more readable and offer a second review when a claimant with long-standing eligibility for the credit is suddenly rejected. A summary of all the recommendations can be found here.

Now that we have reviewed the importance and challenges involved with the DTC, in my next post we will look at the appeal process and the lessons I recently learned in successfully appealing the decision that my adult daughter longer qualified for the DTC.

You can learn more about other tax measures for individuals with disabilities here.


Tuesday, April 14, 2020

Estate Documents: When is it Too Late?

I want to share a very sad situation I was recently involved in so that hopefully it won't happen to any other family.

I was approached by a gentleman seeking estate documents [Wills, Powers of Attorney ("POA") and Personal Directives ("PD")] for himself and his wife, who was hospitalized with a terminal condition. I took instructions, completed the documents and attended at the hospital so they could be signed.  However, when I spoke to the wife, I immediately realized we had a problem - she did not appear to have the legal capacity required to validly sign the documents.

Although the instructions the husband had given sounded perfectly reasonable and I had no reason to think that this wasn't what she wanted, I could not proceed with having the wife sign the documents.

What's required for a person to have the "legal capacity" will vary depending on the act to be performed. However, in general terms, in order to execute legally valid documents, you must have a certain level of competency. You must have the ability to understand the information relevant to making the decision and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

Unfortunately, mental competence can become an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. This is why it's critical that Wills and other estate documents be completed while you are in good health so that there are no questions as to your mental competence.

I felt bad for both parties but it emphasized how important it is to prepare such documents before it is too late.

Note to yourself: there's a good chance it will be "too late" to proceed with such documentation when you already have a terminal diagnosis.

This is especially so when you consider leaving assets in a Will to a beneficiary whom is challenged.

For more information on the standards required to execute valid estate documents, please follow the link.


Sunday, January 12, 2020

Biased? Who, Me? [Reasonable Apprehension of Bias]

This is a follow-up (or, perhaps more accurately, a follow-on) from my most recent blawg post regarding students with behavioral challenges, in which which I noted that the parent had (unsuccessfully) argued that the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards.

You will recall that the parent argued that her son required Applied Behaviour Analysis ("ABA") in order to receive a meaningful education. She was concerned that the adjudicator was predisposed to find that ABA was not education because
  • during his legal career, a large part of his practice involved representing school boards in the areas of special education, human rights and litigation;
  • in that capacity, he “repeatedly appeared as counsel to school boards seeking to achieve a finding that ABA is incompatible with education of autistic children”;
  • the fact that he had argued on behalf of a school board that intensive behavioural intervention ("IBA") therapy was not a special education program or service raised a reasonable apprehension of bias arose with respect to the current situation;
  • subsequent to those court cases, he had advised his school board clients that ABA was incompatible with the education of autistic children; and
  • in an interim decision, he had placed restrictions on the parent’s evidence which precluded her from giving opinion evidence relating to whether “ABA at Tier 3" was education.
You will note that the correct wording is "a reasonable apprehension of bias", not that an adjudicator or judge is actually biased. The reason for this is two-fold; not only would it be much more difficult for a party to prove that the decision-maker is biased, but even the appearance of bias (to a reasonable observer) is enough to disqualify a decision-maker from hearing the case. I'm sure we're all at least somewhat familiar with the old adage that "Justice must not only be done, but must be seen to be done".

The test for finding a reasonable apprehension of bias is as follows:
. . . the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC),
p. 94]
Lawyers are ethically bound to make the best possible arguments on behalf of their clients, whether or not they reflect their personal views. Just because a lawyer advocates a certain position does not mean that he or she agrees with it. Further, having existing, even publicly expressed personal views prior to appointment should does not generally lead to a reasonable apprehension of bias.

It more or less makes sense if you think about it: to find otherwise would preclude adjudicators (and judges) from ever hearing cases in which an issue arises or might arise that also arose in a case in which they acted as counsel prior to being appointed.
... True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.[Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p.12]
Many, however, have (quite legitimately, I believe) questioned how or why a judge can decide for himself whether or not he or she is biased. Shouldn't it be a different impartial actor in the justice system who makes this decision? I have often asked (or at least thought) the same question myself.

But the fact is that it is very judge whom appears biased to you that will decide whether you are right, whether he or she is biased (or at least appears that way). That's what makes an application for recusal on the basis of a reasonable apprehension of bias something to be very carefully thought through. Should you be unsuccessful in the bias application, the same individual you challenged will remain the ultimate decision-maker - this is the self-same person you will need to convince of the rightness of your case. And all of us are, after all, only human.

Although there is a right to appeal a judge's decision that there is no reasonable apprehension of bias, I believe it will be a very uphill battle to convince an appeal court overturn the initial judge's findings.

For any wishing to delve deeper into subject, I will send you off here. Happy travels.


Tuesday, December 31, 2019

Human Rights in Education - When "Meaningful" is "Good Enough"

We've discussed the issue of human rights in education a fair bit, but what of those students whose behavioral challenges really do create an “unacceptable safety risk" to themselves or others?

In September 2019, the Ontario Human Rights Tribunal dismissed a complaint alleging that a school board had discriminated against a Grade 2 student with Autism Spectrum Disorder (ASD) and a learning disability.

Shortly after starting school in a French Immersion program a behaviour plan was implemented for the young student, which appeared adequate until Grade 2.

Unfortunately, the behavioural problems escalated, resulting in the school developing several strategies, including assigning two educational assistants. Things deteriorated from there; in addition to eloping from the classroom, he repeatedly threatened and attacked staff and other students, resulting in multiple injuries. In October 2018, he repeatedly hit an educational assistant ("EA"), giving her a concussion and resulting in her being off work for an extended period of time, following which some staff invoked their right to refuse unsafe work and other parents complained about safety risk to their children.

The student was suspended pending investigation of the incident with the EA and subsequently expelled from the French Immersion school only, which decision was upheld following an internal review process on the basis that his continued presence at the school created an “unacceptable safety risk".

The school board developed what they referred to as a “Loop of School” plan, involving a gradual re-introduction to the classroom. It provided for the student to be moved from the French Immersion school to his neighbourhood school, but not only was the mother unwilling to have her son change schools*,  she would not accept any plan that did not include the provision of “Tier 3 ABA,” (ABA provided in a clinical setting), arguing this was necessary to allow her son to access education.

The Human Rights Tribunal found that the family had proven prima facie** discrimination (as the student no loner had meaningful access to education owing to his increasing dysregulation), but rejected the argument that that his dysregulation was caused by the school’s failure to provide ABA in the classroom, given that meaningful access to education had been provided during the first part of Grade 2 and during a period of home instruction immediately following the suspension without implementing an ABA program.

Although school boards are required to offer students with ASD special education programs, including programs using ABA methods “where appropriate,” the Tribunal didn't accept that “Tier 3 ABA” services in a regular classroom setting were necessary for the student to access education.

It also found that that, prior to the student’s expulsion, the Board had accommodated him to the point of "undue hardship** and despite taking various steps to deal with his increasing dysregulation, the student ultimately posed an unacceptable safety risk to staff, students and himself.

Gradual re-introduction to school was a necessary and reasonable component of the Board's plan and although "reasonable programming alternatives" (such as home instruction or a special education class at his neighbourhood school) had been offered to the student during the expulsion, these had been rejected by the mother.

Turning to the conduct of the student’s mother, the Tribunal stated:
In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board.
Thus, the Tribunal found that “the applicant failed to engage in the accommodation process in any meaningful way…[and] failed to accept reasonable accommodations offered by the respondent”, resulting in the application being dismissed.

Although largely based on its specific facts, the decision does provide some helpful guidance on the types of accommodations that school boards should be expected to provide to ensure "meaningful access" to education and clearly reminds us that a student seeking accommodation is entitled to "reasonable" – as opposed to "preferred" – accommodations.

So, what do you think? Did the Ontario Human Rights Tribunal "get it right"?

Apparently, there was a little more going on behind the scenes, as the decision indicates that the family also wanted "childcare expenses" to be covered by the school board.

** You can find an explanation of both these terms in a previous post, "The Law on Human Rights and Employment in Nova Scotia: Part II" (just follow the links).

~  ~  ~

The decision is also interesting for a couple of additional issues discussed (whether the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards in the areas of special education” and the effect of specific negative interactions between the mother and school personnel); however, these will be discussed in a separate post.


Sunday, December 29, 2019

Merry Christmas and Almost Happy New Year

Merry Christmas and almost Happy New Year and all that good stuff ...

My "early" New Year's Resolution (not that I generally make any so you all should all feel "special", if you know what I mean) is to get back to blogging on at least a [ahem] semi-regular basis. And just in case you doubt my bona fides, I am pleased to advise that I have already written (although not yet published) my next substantial blawg post concerning accommodation in special education.

Alas, you will have to wait a few days to see that - hey, I have to at least try to give myself a head start here ... it's only fair, right?


Come back in a couple of days, okay? Promise?


Thursday, October 17, 2019

"Where Is This Nova Scotia Legal Representation Kit of Which You Speak?"

No apologies this time for the length of time I've went without posting - I simply don't have the time for apologies. And, yes, I do realize how sad that sounds ...

However, realizing there's something I have been meaning to pass on to you for the past few months, I thought I better do so now.

HEAR YE  HEAR YE


The rumours of the death of the Nova Scotia Legal Representation Kit have been greatly exaggerated. By which I mean I have been making a concerted effort to (as much as possible) work on the Kit every Sunday for the past few months.

Yes, I said "effort", not "have been", but we all know what life is like. I am, however, committed to (if at all possible*) creating a user-friendly self-help Kit for families seeking representation of a loved in Nova Scotia.

Looking back, it literally took me a few years to create the Nova Scotia Legal Guardianship Kit, working on it in my "spare time", so to speak. And that was before I returned to practice. No, I don't expect this revamp make-over Kit to take that long to complete but it's definitely not something that can be quickly or lightly done.

So, yes, it's going to take a while. But I am committed to do all I can when I can.

* "If at all possible", meaning that I am not 100% positive that it is possible to create a useful self-help Kit with respect to applying for legal representation in Nova Scotia. But, if it is possible (given the requirements of the new legislation), it will be done.

Thursday, July 4, 2019

Keep Calm and FaceBook On

It has definitely proven a lot more difficult to keep up with blogging since I've returned to practice as a disability lawyer, but do not fear; A Primer on Special Needs and the Law is not going anywhere.

I know this blawg provides a valuable service for the disability community and yes, I actually do enjoy blogging (not that you would know it by the significant decrease in posting over the past few years). It's here to stay.

However, I would like to point people to my FB page, where you will find posts of a somewhat more regular nature. Notice I didn't say you would find daily, weekly or even monthly posts, just somewhat more regular posting.

My FB posts for today and tomorrow, for example, both deal with articles I recently came across in a legal newsletter. Once upon a time, at least one of those articles would have been turned into a blog post. But alas, time is short so I do what I can.

On another note, no, I have most assuredly not forgotten about the much-promised revamped Nova Scotia Adult Representation Kit. It's just that I've been spending more time actually applying for representation on behalf of my clients than reworking the product, which, depending on your point of view could be a very good/bad thing.

And, should you require more, you can always contact me through the MMC Legal Services site. I am always happy to chat.

* Yeah, I know, my apologies for the post's title. It was either that or "When in Doubt, FaceBook". 
The lesser greater of two evils, perhaps?

Tuesday, June 4, 2019

All Hail the New Leader: Disability Support Program

I stumbled across this by accident on the Disability Support Program website. Very, very interesting. Of course, whether it will actually mean anything for the disability community's point of view remains to be seen.

I can tell you, however, that I recently met with Maria Medioli, who has taken over Joe Rudderham's position as Executive Director of the Disability Support Program. And I must say that I was positively impressed - which is not an easy feat with this long-term cynical parent/ disability lawyer.

You might remember that it was Ms. Mediolia that recently commented to the effect that parents and caregivers should contact staff at the DCS, who will "will bend over backwards to support families as best they can."

I must admit that when I first read that, I rolled my eyes, shook my head and wondered why the more things change, the more they stay the same. And that, as they say, was that.

Or at least it was until I actually spoke with Ms. Medioli in person (as part of a small group of families). The conversation lasted close to two hours and she seemed very open and honest in her answers/comments. To say it was a pleasant surprise would be a very large understatement.

So, let's put it this way, Mr. Rudderham and I never really hit it off from the first day we met but I got a very different, very positive feeling from Ms. Medioli.*

Never fear, though; I remain somewhat cynical. After all, does anyone remember the story of the former Student Services Coordinator for the Annapolis Valley Regional School Board who sounded like God's gift to parents whenever she spoke in public but was pretty much the polar opposite when a family actually had to advocate on behalf of their child?

Whether some people start from the right place but quickly get sucked up and corrupted by the system or  are simply very good at "playing the game" (generally to the detriment of individuals with special needs and their family members), I take very little at face value.

But I will give Ms. Medioli a chance to show that she not only talks the talk, but actually walks the walk. Maybe you should, too.

* Ironically, some might say, at the end of our meeting, Ms. Medioli commented that it had went much better than she feared though it would. Skeptic meet Skeptic.


Thursday, May 2, 2019

Canada's Record on the UN Convention on the Rights of Persons with Disabilities

Last month, Canada hosted the United Nations Special Rapporteur [an independent expert who reports to the United Nations Human Rights Council and the General Assembly, and advises on progress, opportunities and challenges encountered in the implementation of the rights of persons with disabilities worldwide] on the rights of persons with disabilities. And she had lots of interest to say.

I'm going to highlight a few areas in this post, those of particular interest to me. However I strongly encourage you to read the entire document. Yes, it's lengthy but definitely worth the time.


GENERAL CONSIDERATIONS
Nevertheless during my visit I have noticed that discussions about the rights of persons with disabilities are still framed in terms of social assistance, rather than from a human rights-based approach. ... Therefore, more proactive governmental responses are needed to ensure systemic change and take away from individuals the burden of initiating lengthy and onerous legal procedures to achieve the recognition and enjoyment of their rights.
EDUCATION
I also noted a disconnection between the State’s commitment to inclusion in legislation and policies, and everyday implementation in practice, reflected in long waiting time and lack of services for students with disabilities and their families, putting them under significant emotional and financial pressure. ...
ACCESS TO JUSTICE
I would like to remind the federal, provincial and territorial governments that the obligation to provide procedural accommodation to persons with disabilities in all legal proceeding, as established in article 13 of the CRPD, is distinct from the obligation to provide reasonable accommodation, as the first is not subjected to the test of undue hardship.

In addition, I am very concerned about the overrepresentation of persons with disabilities, particularly those belonging to indigenous or other minority communities, in both prisons and the juvenile justice system. I have also received alarming information that persons with psychosocial disabilities are diverted to mental health courts for minor offences where they are subjected to higher penalties and stricter regimes.
LIVING INDEPENDENTLY in the COMMUNITY
I am extremely concerned about the lack of comprehensive responses to guarantee the access of persons with disabilities to the support they need to live independently in their communities. Whereas legislation, services and programmes vary across provinces and territories, generally access to support is not considered as a right, but rather as a social assistance programme dependent on the availability of services.

... persons with disabilities have limited access to different forms of support (including income support, home support, and respite centers), experiencing long waiting time up to several years. While some pilot projects have shown their potential to transform service provision (e.g., the initiatives to provide personalized direct funding), the overall identification, systematization and scaling-up of such initiatives remain a challenge.

RIGHT to LIFE
I am extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective.... I have further received worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities. I urge the federal government to investigate these complaints and put into place adequate safeguards to ensure that persons with disabilities do not request assistive dying simply because of the absence of community-based alternatives and palliative care.
Now go read the rest. Trust me.

Wednesday, April 10, 2019

NS Family Fights for Future of Son with Disabilities

This video is making its way around FB with good reason.

It is heartbreaking and a true rendition of what is happening in Nova Scotia right now, particularly to those with more severe challenges, such as Brendon.



Wednesday, February 13, 2019

Representation: Vulnerability Just Ahead?

The following is an excerpt from a recent email to a doctor explaining why Representation can be so crucial for higher-functioning individuals. Please pay particular attention to the last paragraph:
The legislation defines “capacity” as “the ability, with or without support, to
  • understand information relevant to making a decision; and
  • appreciate the reasonably foreseeable consequences of making or not making a decision including, for greater certainty, the reasonably foreseeable consequences of the decision to be made.
In my experience, it is often the second component that is the real sticking point. The simplest example is, perhaps, a child’s ball rolling across the road. Although the child can show his want/need to retrieve the ball at any cost, none of us would allow him to simply run into the road because we understand what the child cannot; namely, the very real risk (and potentially severe consequences) of being hit by a vehicle.
A more apropos example might be a challenged young adult meeting (and perhaps developing a form of relationship with) an individual in the community or elsewhere, who then asks our young adult to go somewhere or do something with them. Given that executive functioning deficits cut through every aspect of a person’s life, the issue becomes the young adult’s ability to think through the potential consequences of the decision he must now make. If, for example, the other individual is a stranger or you and I would see that what that person is proposing is illegal or potentially unwise or even dangerous, [unless a legal Representative has been appointed], no one would have the ability to intervene.
I see it much less as us imposing our value judgement as to what might constitute a “good" decision in the circumstances as recognizing that, whatever any one of us might ultimately decide, we at least have the ability to (if we choose) think forward as to potential consequences; whereas, adults in [this] situation simply do not (and likely will never) have this same ability.



Tuesday, December 11, 2018

Legal Representation in Nova Scotia: A Treatise [Part i

We ended last year by taking a look at the history of adult guardianship in Nova Scotia and a very quick overview of the new legislation. You will recall that in October of 2017, I also gave an interview to CBC as to my thoughts on the (then) proposed legislation. We will now take a closer look at the Adult Capacity and Decision-Making Act, its requirements and what it all means for families.

By the end of this month, I will have (hopefully successfully) completed my first application for legal representation under the Adult Capacity and Decision-Making Act. And I must tell you that the paperwork required is definitely more complex  then before.

As many of you know my plan was is to modify the Nova Scotia Legal Guardianship Kit so that it complies with the new legislation in order to ensure families continue to have access to a cost-effective way to apply for guardianship representation.

If, by chance, you feel that you picked up on some ambiguity in that last sentence, you are correct.

First, a confession of sorts. I have learned three things over the past year:
  • it will take more than a few (or even several) tweaks to turn the Nova Scotia Legal Guardianship Kit into the Nova Scotia Adult Representation Kit
  • a completely new self-help Kit is required to comply with the new legislation; and
  • I honestly don't know how long  it will take to create and test-drive (or if it is even possible to create, for that matter) a new useful Kit.
Although it pains me to say this, I remain committed to helping families approach the legal representation process without incurring the cost of a lawyer if at all possible (or, at the very least, in a way that costs can be minimized).

But let's put that issue aside for now and look at some of the changes made to the process of obtaining guardianship representation in Nova Scotia.

________________________________________________________
As an aside, just in case you were wondering, a treatise 
is defined as:
a systematic exposition or argument in writing including a methodical discussion of the facts and principles involved and conclusions reached
______________________________________________________
Shall we begin?

Friday, October 26, 2018

Community Living Month ... Who Knew?

FROM NSACL:

October is Community Living Month!

For 64 years the family voice has guided the work of NSACL, and we are committed to ensuring that individuals with intellectual disabilities and their families have the support they require to live full and inclusive lives in their community. Having access to all that our communities offer means every citizen, regardless of their disability, can choose how they live their life. Community living can mean having the ability to choose your school, where you work, where you live, and where you hang out with your friends. The opportunity for every person to engage in a full and inclusive life impacts us all and shapes our community. We are celebrating Community Living Month by asking people:
“What does community living mean to you?”

People from Nova Scotia and several other provinces have shared their responses to this question. We have heard from first voices, students, families and other Nova Scotians such as, MP Andy Fillmore, MLA Claudia Chender, and Mayor Mike Savage, make sure to check them out on Facebook and Twitter.

The month is almost over but there is still time to participate, help us spread the word by taking a photo of yourself or someone holding the
#InclusionNS sign or take a photo of what you think community living is. Post your photos using #InclusionNS or send it to us and we will share it on our social media!

Thursday, July 12, 2018

Mea Very Culpa ... Estate Planning

You know it's bad when ...

Even I can't believe that I have only posted once since February. And this after promising to post on Nova Scotia's new guardianship representation legislation for the past seven months.

Hence: Mea Very Culpa

When it comes to the promised post(s) about the new Adult Capacity and Decision-Making Act, in my defence, there's a fair bit to digest there and the fact that takes time is somewhat problematic, especially when you have actual client files demanding your attention. That being said, I am working on a representation application at the moment and once I have walked through the process myself, I will be in a much better position to pass on what you need to know.

I'm happy to say that I have done a fair bit of work on the new Nova Scotia  Legal Representation Kit, but that, too, will benefit from having actual practical experience with the new legislation to work from.

In the interim, to appease the masses and remind you that proper "estate planning" involves more than just a Will, I offer you this quick reference estate planning chart courtesy of the Legal Information Society of Nova Scotia (a highly-recommended resource lovingly known as LISNS).