In everyone's life, at some time, our inner fire goes out. It is then burst into flame by an encounter with another human being. We should all be thankful for those people who rekindle the inner spirit.
~ Albert Schweitzer

Saturday, October 29, 2022

Update on Canada Disability Benefit Act

This past week, MPs unanimously passed the second reading of  Bill C-22, the Canada Disability Act.

This only happened thanks to a lot of work by the disability community in reaching out to MPs to stress the importance of the creation of the Canada Disability Benefit. We all need to be proud of this moment. 

The proposed legislation will now move to the Committee stage, where MPs on the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) will study the Bill and hear from witnesses, people with disabilities, disability groups and others. 

NOTE: Moving forward in this post, I will be using the terms legislation, statute and Act (such as the Canada Disability Act) interchangeably. 

However, there is a lot more work to do before the Bill is passed into law. 

After being considered by the Committee, the Bill will return to the House of Commons for the Report stage and Third Reading debate before its final vote. Only then will it be sent to the Senate where it will go through all the same stages it went through in the House of Commons. 

Inclusion Canada is hoping that it is hoped that the legislation will be passed by Parliament by December 2022 and the Canadian Disability Benefit created quickly in 2023. Unfortunately, even that is far from the end of the story. This is no time to rest on our laurels.

The Devil in the Details
This is the current version of the draft legislation. If you read it carefully, you will see it doesn't tell us much other than a Benefit will be created. We are left wondering who will be eligible, how much individuals will actually receive or if it's a one-time payment or annual benefit, among other things. 

Here's the sticking point. 

Passing legislation can be quite a challenge depending on who/what it benefits and the political makeup of the House. Think minority government. But often, as this is this case, that is far from the end of the story.

Many, many moons ago, I discussed how legislation (in this case, the proposed Canada Disability Act), regulations and policy interact. I suggest you take a quick look at that before we move on to look at what happens after next, after the legislation is finally passed.

Passing legislation is far from the end of the story.

Thursday, October 13, 2022

Major Improvements to Disability Tax Credit Eligibility

I've written a fair bit over the years about the Disability Tax Credit ("DCT"); primarily how worthwhile it is to have and how difficult it is to be approved. Finally, some good news.

In order to qualify for the DTC, a medical practitioner must certify that you have have 

  • a severe and prolonged impairment in one of the specified categories;
  • a significant limitations in two or more categories, or 
  • receive therapy to support a vital function.
The good news is that the eligibility criteria for mental functions and some other disabilities has been expanded and made retroactive to January 1, 2021, so even if you previously applied and were refused, you might just get there now.  

The various categories are set out below, but I'm going to focus on "mental function" today. You can view the previous (2020) and expanded criteria to qualify under mental function here

As just one example of the changes, previously only adaptive functioning, memory and judgment were considered under the heading "mental function". Now, in addition to the above, attention; concentration; goal setting; perception of reality; problem solving; regulating behaviour and emotions; and verbal and nonverbal comprehension will be considered. 

The requirements of what can be considered under each of the above items have also been expanded to  allow for consideration of more things. For example., when looking at adaptive functioning, for the first time adapting to change, expressing basic needs and going into the community will be considered.

One of my personal favourites, when looking at judgment, previously only things such as following treatment prescribed by a doctor and selecting clothing appropriate to the weather were considered. Now, in addition to the above, recognizing the risks of being taken advantage of by others and understanding the consequences of your actions will also be considered. Anyone who has dealt with a representation application (formerly known as adult guardianship) knows just how important those last two things are to safety and functioning in everyday life.

It's a little confusing to explain some of the changes, so I strongly recommend you check out the both the previous and new more inclusive list of items considered for yourself. 

As I said, we have only looked at the criteria under "mental functions" in this post, but as noted above there are changes in the criterial for other types of disabilities, too, such as 

  • the recognition of more activities in determining time spent on life-sustaining therapies; 
  • a decrease in the required frequency of life sustaining therapy (now requires a minimum of two times per week as opposed to three); and
  • including individual with Type One diabetes under the heading "life sustaining therapy".
You can find more detail on those other categories here. 

Not to say the system is now perfect but it should be a LOT BETTER than before and remember, besides the tax savings, the DTC is the gateway to all federal programs for persons with disabilities, such as the Registered Disability Savings Plan and soon (hopefully) the Canada Disability Benefit.

The categories are walking, mental functions, dressing, feeding, eliminating (bowel or bladder functions), hearing, speaking and vision 

Friday, September 30, 2022

Advocacy Is What Its All About

The following is an excerpt from the Inclusion Matters September 2022 email:
On September 20, Members of Parliament debated the second reading of Bill C-22, which seeks to create the Canada Disability Benefit.

This historic legislation will implement a monthly benefit for people with a disability in Canada, with an aim to reduce poverty rates across the country for people with disabilities. While many people with intellectual disabilities and their families face increased expenses and with over 70% of people with intellectual disabilities living in poverty. This bill has the potential to make life easier for many and bring people with disabilities above the poverty line. We have never been this close before to making such a positive financial impact. 

Unfortunately, on September 28, Conservative MPs denied a unanimous motion in the House of Commons that would have fast-tracked Bill C-22. As a result, further debate and passage of the Bill will be delayed. It is now more important than ever to contact your MP and urge them to support this important foundation legislation. 

We need your help!  
By phoning or emailing your MP you can ask them to support and vote in favour of Bill C-22. We need to request that all MPs, regardless of political affiliation work collaboratively to fast-track this legislation now so people with disabilities don't have to wait any longer for this much needed financial support. Tell them your story as to why this is important to you and or your family member. 


Click here for your MP's contact info here. 
Click here to a template letter you can personalize to send to your MP. 

Sunday, August 28, 2022

Protecting an Inheritance with the Registered Disability Savings Plan?

I was asked recently whether an inheritance could be placed directly into a Registered Disability Savings Plan ("RDSP") so as to protect those funds from the Department of Community Services. As an aside, if you're somehow not already familiar with the RDSP, you really need to be.  

As long-time readers will know, when calculating an individual's [continuing] financial eligibility to benefits under the Disability Support Program ("DSP") the Department of Community Services ("DCS") looks at both the individual's monthly income and their assets. With some specified exceptions, the Department considers any property owned by a person regarded as having value and available to meet debts and commitments as an asset.

For our purposes, there are four main ways of transferring property or money to a beneficiary under a Will. The executor will be directed to 

  • transfer the bequest directly to the named individual;
  • hold the funds in the type of discretionary trust used whenever a minor child is a beneficiary;
  • hold the funds an absolute discretion trust [better known as a "Henson trust"] or
  • direct that the funds be placed in an identified RDSP for the benefit of the beneficiary.**

Unfortunately, only two of the above will protect an asset like an inheritance from being taken into account by under the DSP. Neither a direct transfer nor the creation of the typical and well-used discretionary trust bodes well financially for any beneficiary who is [or will be] eligible for support under the DSP, as both will result in the funds being taken into account and negatively affect the beneficiary's current (and most likely) future benefits. Unfortunately, the more significant the the inheritance, the greater that negative effect will be.  

The key to protecting any inheritance from DCS is to ensure that, from a legal point of view, the funds are never placed in the hands of the beneficiary, meaning the beneficiary has no legal right, either themselves or through an agent, to access those funds, something that both a Henson Trust and a RDSP can do IF the Will is properly worded. 

The Henson Trust                                                                                                                            I am a huge proponent of the Henson Trust in such a situation as it's the safest and most effective way to make sure that the inheritance is protected from the DCS while maintaining quick and easy access to the funds for the benefit of the beneficiary. As discussed many times over the life of this blawg, this is hands down the best way to handle an inheritance for a person who is or will be receiving government benefits. 

Wednesday, July 6, 2022

Yeah .... About This Whole Blogging Thing

If you followed the first link in my last post, you might have noticed that I'm much more productive on the MMC Legal Service's FB page than I am here. 

That's because it's so much quicker and easier to post a link to some current event or issue, adding my thoughts in a few lines of text than it is to pen a meaningful blawg post. 

Trust me when I say it takes me a lot longer to write a post than it does you to read it.

That's why I am throwing out the following two thoughts for your consideration.

  • You might want to follow the FB page to keep more up-to-date with current goings-on.
  • This gives the added benefit of being able to either DM or use the Contact Me option on the MMC Legal Services' website should you see something you think would benefit from a more in-depth discussion.

Take your time. I'll be right here waiting.

The Canada Disability Benefit Needs You ... and You ... and You

I've posted a few times on my MMC Legal Services FB page about the yet-to-be seen Canada Disability Benefit promised prior to the last federal election. 

The following is the text I received in an email from Disability Without Poverty. Please read the Call to Action found at the bottom of this post. 

Turning Bill C-22 Into The Canada Disability Benefit Act
By Amanda Lockitch 

How Does a Bill Become Law in Canada? 
On June 2, 2022, the Canada Disability Benefit (CDB) had its first reading in the House of Commons (HOC). On June 13th, with roughly 10 sitting days left before parliament adjourns for summer break, the leaders of over 75 stakeholder organizations put forth a letter to government requesting that Bill C-22 (CDB) be called for its second reading before this adjournment. The second reading will enable C-22 to move to its assigned Standing Committee and then onto the rest of the legislative process. The hope is that the CDB can progress in a timely manner because people are in desperate need of help now.

While Bill C-22 has reached the first important step of being tabled, many working age people with disabilities living in Canada are asking why their dinner plates are still empty at the end of each month. We are seeing increasing accounts of people taking the drastic step of applying for Medical Aid in Dying (MAiD) simply because they can’t make ends meet. How long will it take the CDB to reach the pocketbooks of people in need? 

Saskatchewan Senator Brent Cotter and Greg McMeekin, Alberta’s Advocate for Persons with Disabilities, held a webinar moderated by the Co-Chair of Disability Without Poverty, Michelle Hewitt, to explain the process of how a bill becomes law in Canada and answer questions that have arisen about this process. Below is an overview of that process. 

The House of Commons 
In this case, the CDB was introduced into the HOC. Once past its first reading and tabled, it must go through a second reading, where it undergoes debate and a vote on its principles. Then it moves to its Standing Committee. 

Consideration in Committee 
Witnesses and experts are invited to the committee to examine the implications of the proposal. They look at how to improve it, what might need to be added or taken away. They review it, clause by clause, and eventually report back to the HOC. In this case the committees will examine over 20 regulations to make sure they fit the letter of the bill as introduced. For example, Bill C-22, as introduced, speaks to a benefit for people of working age. That means if anywhere it includes minors or seniors as entitled to the benefit, they are ‘out of bounds’ and cannot remain in this particular bill. Once every regulation and every aspect of the bill has been approved by its committee, it is reported back, to the HOC and receives its third reading. 

The Senate 
Then it goes through a similar process from first to third read in the Senate. Once the exact same version passes through both the HOC and the Senate it obtains Royal Assent from the Governor General. It passes into law by Coming into Force at the discretion of the Governor in Council. It changes from Bill C-22 to the Canada Disability Benefit Act.

Where We Stand Toda
At this time, the HOC has risen for the summer break. 

While Bill-C22 did not receive a second reading, we are hopeful it will be picked up quickly again in the fall. We encourage you shake hands with your local MPs when you see them out and about this summer and keep the pressure on regarding the Canada Disability Benefit. As too many people living in Canada are aware: poverty doesn’t take a break for summer.

CALL TO ACTION

Disability Without Poverty is requesting people to Meet, Call or Email your local MP.

Over 1,650 Canadians have written to your MPs to let them know how important it is to move people with disabilities out of poverty but we must continue to make sure the Canadian Disability Benefit remains a national priority.

If unsure who local MP is or how to contact him or her, this page will allow you to search MPs by entering your postal code. Following the corresponding link, will give you all the contact information.

Tuesday, June 21, 2022

Public Service Announcement: Accessibility

The following showed up in my email from Inclusion Canada today so I'm passing it on.

You have a right to accessible information. What should that look like?
We know that accessibility is key to people with disabilities participating fully and equally in society. Fill out a survey to help us tell the federal government how they can do better and communicate more accessibly. 

Inclusion Canada is looking for people with an intellectual or developmental disability and their supporters to speak up. We want your voices to be heard You can do the survey in three ways: 

         1.  Online 

          2   With support over the phone or a video call 

3. On paper (we will mail you a printed copy of the survey) 

Please contact AIIDD.Study@camh.ca or by phone 437-328-6761.
When you complete the survey you will be entered into a draw for 1 of 12 gift cards. But the real prize helping improve how the Government of Canada communicates with people with disabilities in the future. 

This project is a partnership between Inclusion Canada, the Centre for Addiction and Mental Health (CAMH), People First of Canada, the British Columbia Aboriginal Network on Disability Society (BCANDS), and Surrey Place. 

Thursday, May 19, 2022

The Canada Disability What??!!

Does anyone remember the Canada Disability Benefit? Apparently, the government doesn't. 

Which is why this is so necssary.

 

It's long past time to bring this back to the public's attention. 

SO IF YOU WANT TO HELP, HERE'S HOW.

In the meantime, keep on singing. Keep on dancing. No matter how you groove.

Friday, October 8, 2021

In Residential Care Situations, What Are Essential Visitors?

These days when I come across an interesting issue or article in the media, I generally just post on FaceBook, reasoning that at least that way it will receive some attention. You may not know this but legal blogging is  a very labour and time-intensive craft (at least it is if you want to do it right) and many days I find it hard to keep up with both my practice and my life.

Although something may indeed better than nothing, the downside is that it limits how much commentary I can provide on any given issue, so it really isn't the same, is it? 

So just as I would about to add this link on the MMC Legal Services FB page , I stopped, took a deep breath and made the decision bring it here instead. Consider it a small effort at atonement.

I know for a fact that the restrictions on visitation at Dept of Community Services home in Nova Scotia has affected many individuals and their families. Although I don't know for sure exactly how negatively people have been affected here, I do know that Nova Scotia could sorely use something along the lines of this proposed Private Member's Bill in Ontario.

Many, including Taylor, hope that a private-member’s bill introduced in September 2020 could lead to change. The More Than a Visitor Act, proposed by Lisa Gretzky, NDP critic for the Ministry of Community, Children and Social Services, aims to ensure that caregivers of a group-home resident would not be treated “merely as a visitor,” especially in emergency situations. The bill defines a caregiver as an individual who “continuously or occasionally provides significant, unpaid, non-professional support to a person receiving care, support or services,” shares an “emotional bond” with the person who receives care, and is considered by the person receiving care, or their substitute decision-maker, to be a designated caregiver. “A designated caregiver,” the bill reads, “may be a family member, a neighbour, a friend, a support person, an attorney for personal care or property under the Substitute Decisions Act, 1992 or another similar type of person.”

There's already been one successful human rights decision on this issue in Ontario, in which the Commission found that a child's disability-specific needs were violated when a rigid visitor restriction policy initially allowed for only video calls or drive-by visits and when in-person visits were allowed, they were required to remain six feet apart from residents. Unfortunately, due to a  communications disability, the child could not use words to communicate, instead relying on  touch, hugging, pulling on hands, gestures and other physical displays of expression.

This decision raises (and answers) many complex and timely issues.

Significantly, the Tribunal found that “[h]uman rights protections do not go away in a pandemic”, despite the service provider's argument that the unprecedented nature of the pandemic did not allow space for individual human rights protections or individualized assessment. Although the pandemic raised important and difficult issues, service providers were still required to follow the requirements of the Code. The human rights framework is robust enough to address many contexts – including a pandemic where safety and health considerations require particular attention. 

The next point of interest is Commission's response to the argument that the parents were at fault for failing to try out the alternative methods of communication proposed offered and instead “insisted upon their preferred accommodation.” The Tribunal rejected this, finding that once the parents had made an accommodation request and explained why the alternatives offered were insufficient, it was incumbent upon the Respondent to actually consider their request, as opposed to insisting that their way was the only way. 

Although the duty to accommodate requires the cooperation of both parties cooperative process, the ultimate responsibility for finding and implementing the accommodation solution remains with the respondent.          

The third important finding relates to the effect of government guidance around safety protocols on human rights obligations. The provider asserted that it was required to strictly follow the government guidelines and couldn't deviate from these to accommodate any individual. However, the Tribunal found that such directions were advice and recommendations intended to guide service providers in their decision making. 

This mandated that the service provider implement the government’s guidelines and recommendations with its mind turned to the individual human rights of its residents. The accommodation request must be investigated and an assessment of the actual risk of accommodating the individual must be undertaken. As they had failed to do this, it was unable to demonstrate that accommodating these individual needs would amount to undue hardship.

The ball was in the respondent’s court to consider the applicant’s accommodation request, and seek its own public health advice on that specific request. It did not do so. Instead, it remained steadfast in its approach. Because the respondent did not investigate the applicant’s accommodation request, there is no objective health evidence that it would have caused undue hardship to grant the request in terms of jeopardizing the health and safety of the residents and staff in the applicant’s home. (para 132) 
Although the Tribunal’s decision relied heavily on the individual facts of the case (the child came with particular pressing needs to have meaningful contact with his parents; the group home had only two residents, which was a relatively controlled environment; and the public health authority was supportive of an individualized risk-based assessment informed by the rates of transmission in the region at that time). all of the above were important factors in the Tribunal’s determination. 

I would submit that there is a strong argument to be made that such such accommodations must be guaranteed to  adults as well. There are a myriad of factors to be considered when individuals have developmental disabilities or delays. For example, outdoor visits with strict rules around touching can be very confusing and upsetting for these individuals, no matter their age. 

The definition of "essential visitors" in residential care situations must include parents or other significant individuals and accommodations must be made [to the point of undue hardship] to meet everyone’s needs. The law requires it.

Sunday, June 27, 2021

Self-Represented Litigant Resources

I am please to say that I garnering quite a collection of Self-Represented Litigant {"SRL") resources. I just added one more to the list today.
Guide for SRLs with Disabilities: Understanding Your Rights and Requesting the
Assistance you Need 


You can find all the SRL resources in the sidebar on the right-hand side of the page, immediately under the heading, Featured Posts: Groundbreaking Ontario Human Rights Decision Special Education Decision.

Please check them out. You never know when they might come in handy.

Saturday, June 5, 2021

It's About Time ... Canada to Relax Medical Accessibility Issues

Canada, in many ways very progressive, has had long-standing issue with respect to immigration policy when it comes to individuals with a family member with a disability. In such situations, immigration is usually denied under a "medical" exclusion; namely, "medical conditions that ... cause[s] excessive demand on health or social services". 

As just one of numerous examples, in 2017, an American family moved to Manitoba after purchasing a hunting and fishing business. However, their application for permanent residency was denied due to  their 6-year-old daughter's intellectual disability.

At that time, the limit for “excessive demand” was set at $6,655 a year, said to be the average annual health and social service spending per Canadian. If the costs of caring for a person’s condition were higher than this, the applicant and all family members were denied permanent residency. 

Where to begin?

Let's start with the $6,655.00 figure - the supposed average annual health and social service spending per Canadian in 2017. 

A Global investigation revealed the figures used by Immigration Canada to determine “excessive demand” and the denial of permanent residency does not accurately reflect the cost of providing health and social services in the country. Global’s reporting found the government doesn’t accurately account for up to $40-billion in annual social service spending – or roughly $1,105 a year per Canadian. This means the $6,655 limit used to deny applicants should be at least $7,404 if all social service spending is accounted for accurately.

Sadly, Immigration officials made other errors when assessing this family’s application, such as failing to  take into account their contribution to the local economy and unfounded claims about excessive costs on the local school. The family had come to Canada through the Provincial Nominee Program, meaning the Province had already recognized the beneficial investment they were bringing due to their business acumen, business plan and business experience.

Even the local School Division Superintendent recognized that, due to the fact that (as in most, if not all Provinces) special education is funded on a “block” basis, the Division's overall budget wouldn't change as a result of admitting Karalynn.

 "QUITE SIMPLY, THIS CHILD IS IN OUR SCHOOL DIVISION AND SO THEREFORE WE EDUCATE THIS STUDENT REGARDLESS OF ANY NEEDS ETC. IT'S OUR JOB," HE SAID. "WHETHER THIS STUDENT IS HERE OR SOMEPLACE ELSE THAT WON'T CHANGE OUR FUNDING."

The legal definition of ‘excessive demand’ is very broad in that both physical and mental conditions and disabilities make a person potentially inadmissible even if the treatment cost is only slightly higher than that for the average Canadian. 

To add insult to injury, as noted above, this exclusion can be applied to family members who don't have a medical condition. Thus, if a principal applicant applying for economic-class immigration has an accompanying dependent found medically inadmissible, that principal applicant is also inadmissible. 

Looking for an example a little closer to home? Even worse??

Friday, January 8, 2021

Can We Chat?

First, mea culpa. It's been a while since I posted. I'm more or less blaming that on Covid brain.

But. Two things.

First, I just came across an Ontario law firm [Pooran Law] whose tagline is Whole Life Planning and Legal Support for Life. I strongly suggest you check it out

Although some items will be province-specific, a lot of the material will apply. I have added the firm to the sidebar of the blawg - right now, it's in top position but I will be moving it further down the sidebar later.

Second, I have started on some draft blog posts, including some that are Covid specific (the legal obligation to wear mask and Covid's effect on special education) and others of more general interest, such as a new case out of Ontario concerning discrimination in university and the restraining and exclusion of students with disabilities in public school.

So, please stay tune.

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]