Human Rights & Housing in Nova Scotia

You might recall that in 2015, a Human Rights Complaint was brought against the Disability Support program on behalf of three long-term residents of Emerald Hall. Three years later, this complaint is finally being heard by the Nova Scotia Human Rights Commission.

If successful, this complaint has the potential to shake up the Disability Support program for all of us, in a very positive way. Why do we need a shake up?

For me, this headline says it all.

Adult Guardianship Representation in Nova Scotia [Part I]

Adult guardianship has been a very popular topic since this blawg first came into being. But the lay of the land has completely changed as of 12:01 a.m. on December 28, 2017.

Why is that, you ask?

Quite simply, at that time,  a new piece of legislation, the Adult Capacity and Decision-Making Act, came into force. This new legislation has significantly changed the scope, extent and meaning of guardianship in Nova Scotia.

How's that, you ask?

First off,  not only does the word "guardian" not appear in the legislation's title, but you won't find it or the tern "incompetent person" anywhere in the text of the legislation, either. Meaning that those of us who were guardians a mere few days ago were magically transformed into "representatives" on the morning of December 29th.

Although I believe that change in terminology is important (will anyone even know what you're talking about when you say you are someone's representative?), it is only the most inconsequential of the changes this legislation brings.

Although the  government engaged in a consultation process (both prior to and after drafting the new legislation), many felt the process was lacking and should have been more extensive, so as to reach all stakeholders (meaning all  the individuals working with and, more importantly, affected by the legislation).

I believe some of these concerns are legitimate. Personally, although heavily involved in the second round of consultation process (and that, really, only by accident), it troubles me to say that I saw very few positive changes come from that process.

I am only one of many who have publicly expressed their concerns with the new legislation; however, I must admit that I find it somewhat ironic that my concerns tend to be close to the polar opposite of those expressed by many others.

But before we go on to examine the new legislation (and my concerns) in more detail, I would like to take a look back.

Some Thoughts on the Proposed Adult Capacity and Decision-Making Act

As I have yet to make good on my promise to share my thoughts on Nova Scotia's proposed new adult guardianship legislation, the Adult Capacity and Decision-Making Act, while you wait, I humbly offer you my interview on CBC's Main Street Program.

I'm Not Sure Those Words Mean What You Think They Mean ...

I will definitely have more to say about the Province's proposed new adult guardianship legislation, Adult Capacity and Decision-Making Act, over the next few weeks, but for now I just want to point out what happens when Ministers of the Crown might not have a complete grasp on all the complex legal issues they are responsible for.

Two comments made recently by Justice Minister Mark Furey with respect to the proposed legislation have me a little concerned.

Although the Minister is certainly correct when he states that our current legislation, the Incompetent Persons Act takes an “all or nothing” approach, giving complete control to a guardian for all aspects of a person’s decision-making and I agree that the new legislation is "more progressive”, my concern is that his comment immediately following; namely, that the new Act includes a “presumption of capacity”, could definitely be misleading to some.

Although, unlike the proposed legislation, the Incompetent Persons Act does not clearly state that "an adult is presumed to have capacity, unless the contrary is clearly", this has always been the state of the law at common law. "Common law" simply means judge-made law and it is very bit as valid as legislation, unless some piece of legislation overrides it.

This means that even though our current legislation doesn't explicitly state it, everyone over the age of 19 years in this Province is already presumed to have capacity (or be competent) and for the past several hundred years, an applicant (a person seeking to be appointed as guardian) must prove that an adult is not competent before a guardianship order will be granted.

My second issue with the Minister's comments is that "experts would asses the adult’s capacity to make decisions and the court would determine whether the person applying to be a representative is suitable".

Again, although, perhaps, not technically wrong, it most certainly implies (at least on my reading) that

• the expert will assess and decide the adult's capacity; and
• the court will decide if the applicant is a suitable representative (aka "guardian").

The problem is with that first bullet, as it will be the court that determines whether or not a person has capacity, not any expert. We currently need evidence from two medical doctors stating that the adult is incompetent and unable to manage their affairs. Under the new legislation, there will only be one professional assessing the adult's capacity; however, the court is and will remain the final arbiter and, as always, is free to accept some, all or none of an expert's opinion evidence.

And thus my concern with how legal information is sometimes filtered through government officials to the general public. I will share some of my concerns with the proposed legislation, itself, in a later blawg post.

An Estate Planning Tool For All

We've talked a lot  about the Henson Trust in the past - it's importance, it's validity in Nova Scotia and how crucial it is to ensure that one is drafted correctly.

You might want to go back and review some of that. It's okay; I will wait.

One of the things we haven't discussed, though, is the fact that the use of the Henson Trust doesn't have to be limited to families that have a member with special needs or who is in receipt of provincial disability benefits. Although originally designed to protect the inheritance of children with special needs, it can also be an effective estate planning tool for other reasons and even for other families.

For families that do have a child with special needs, in addition to it's ability to protect the beneficiary's provincial disability benefits, a Henson Trust can be a tax-efficient way of taking care of that challenged child's siblings or other relatives. In many cases, the amount of money in the trust is more than the child will require, and whatever remains after the child’s death can be redistributed among his or her siblings.

I will let Ken Pope explain the other beneficial tax implication for families who have a member with special needs:

Under Canadian tax law, there are three types of testamentary trusts: a Graduated Rate Estate (GRE), Qualified Disability Trust (QDT), and all other testamentary trusts (OTTs). 

It used to be that all testamentary trusts were generally taxed in the same way — at the same graduated tax rates as any individual, but as of Jan. 1, 2016, OTTs are taxed at the highest federal tax rate while GREs and QDTs are not ...

"The taxation of testamentary trusts has changed, but as long as income is declared or attributed in the hands of beneficiaries who are in lower tax brackets, there’s no real change,” Pope says. “Now all income in the hands of the trust is taxed at the top marginal rate of 44 per cent, but if the income is declared in the hands of a beneficiary, it’s taxed at a substantially lower rate.”Finally, a reason for any family to consider using a Henson Trust is to allow parents to sprinkle income among their children or to protect assets in the event of a divorce.

As I said, however, this isn't just an estate planning device for families with a member with special needs. A very good reason for all families to consider whether or not a Henson Trust might be useful in their circumstances is the fact that it gives parents the ability to sprinkle income among their children and protect assets in the event of a divorce.

If you receive $100,000 inheritance from your father, and you and your husband use it pay down your mortgage, you won’t ever get $50,000 back in the event you divorce,” he explains. “But if you receive this inheritance as a Henson Trust, that trust in not divisible in the event you get divorced.”

Henson Trusts ... crucial for families with a member in receipt of provincial disability benefits, but so much more.

Standing on the Shoulders of Giants ...

Trolling through FaceBook today (because I really have nothing else to do, right?!), I was noticing some of my American friends posting their thoughts on the debt they owe to those who came before them and made the ultimate sacrifice.

Which, I honour and respect that, it's just that we tend to save those thoughts for a different day ...

However, it did get me thinking about how much we, as parents, owe to those who came before us. How both we and our children stand on their shoulders.

Pretty much any advance made in the world of disabilities, whether we look to the US, across Canada or right here in Nova Scotia came about through the sheer work, determination, dedication and (never to be forgotten) passion of those parents.

Think about it ... in the US, we need only to look at IDEA; in Canada we could look at the Convention on the Rights of Persons with Disabilities and elsewhere; here in Nova Scotia, I need only look almost literally across the street from my home to see the Flowercart. I can only presume that other sheltered workshops throughout the Province came about through a similar process. Please understand that I'm not suggesting that any of these concepts (particularly sheltered workshops) couldn't be improved on, just that, at the time, they were a giant step forward for the disability community.

It's true, I have had (and shared) such thoughts on many occasions, but what makes this time different perhaps are the four parent-inspired and created innovations I am aware of in my own back yard - both CAPRE and the Alexander Society for Inclusive Arts have been around for many, many years; Kaleidoscope is relatively new; and Rowan's Room Respite and Developmental Centre is pretty much brand new. I am proud to personally know all the families that started these endeavors and of the fact that all four are happening right here, in my Annapolis Valley.

If I may, I am particularly proud (at the moment) of Elizabeth Mason Squires for taking on this huge venture:

The Skills to Navigate
It’s not about fitting in. It’s about giving them the skills and tools to better navigate a world that doesn’t always understand or accept differences. It’s about being who they are but giving them the power to control their understanding of unfamiliar situations and differences, as well as the ability to master their own environment.

Be it with respect to education, day programming, leisure, housing or any other of the myriad of issues facing our communities, the facts remain the same - it so often takes highly-motivated parents and families desperate to find something useful and workable for their family members to create the next bridge forward, to the benefit of so many.

May we never forget that we stand on the shoulders of those who came before us. But equally important, may we never forget our corresponding duty to make life better for future generations.

And while we're doing that, please don't forget to check out the above organizations.

NEWS RELEASE: DISABILITY RIGHTS COALITION

UPCOMING PROVINCIAL ELECTION

We are asking you to take action in your home communities to support and address issues relating to individuals with disabilities and their families.  We share with you our latest News Release and ask you to also share/post it on your websites/facebook & tweet away...

Contact your local candidate and ask them what their position is on the "Transformation Process"...or attend a candidates meeting...

Contact local media in your area to see whether a story could be done on these issues pertaining to the Transformation and how it relates in your community.

DRC have asked for meetings with Premier McNeil & Opposition party leaders to highlight our concerns & the issues facing our community.  This is a chance to have your voices heard.

Ask other family & community members to support you in your efforts!

NEWS RELEASE DISABILITY RIGHTS COALITION

Since 2014 the Liberal government stalls Human Rights Complaint that was filed jointly with three individual complainants, the Disability Rights Coalition(DRC) and the Canadian Elizabeth Fry Society.

My Favourite Time of the Year ... Election Time!

Long time, no speak. My apologies for that.

But look at what I found today ...

Shaping the future of NOVA SCOTIA’S DISABILITY SUPPORT PROGRAM Choice and Inclusion: Implementation Plan

Reading through it, it occurred to me that they design these things so that anyone outside the disability community who happens to stumble across it will flip through it and think, "Good job, guys. Look at us go".

Unfortunately, if you happen to be someone who has actually walked (or wheeled) their way through this world, you might want to take a Valium (or some other nervous system calming agent) before trying to read it.

If I may ... a few examples, perhaps?

Oh look, they are going to take a new approach in providing services. How special.

A New Approach
Nova Scotians with disabilities have the same rights as everyone. We all deserve to live our lives as independently as possible. Each of us has a right to be full participants in society.

That means full social and economic inclusion, and the opportunity to live with dignity and choice. A person-directed, accessible and flexible support system for persons with disabilities will focus on key areas of action: • Increasing community-based living with social and economic inclusion; • Modernizing services and programs based on choice, flexibility and person-directed planning; and, • Reducing reliance on long term larger facilities. 

Too bad that promise was first made four year ago, when this government came to power. You might remember that - it was when the Liberals first adopted the NDP plan in the middle of our last election campaign.

Update the legislation? You mean the Homes for Special Care Act, first passed in the 1970s? That would be awesome, wouldn't it?

Updated Legislation
New legislation to replace the Homes for Special Care Act will ensure a person-directed approach to service delivery and emphasize helping people live in their own homes and communities. The legislation will help establish a range of services, supports and funding, while protecting the rights of individuals with disabilities so they can access government services and programs. 

Too bad that promise was made four year ago, too. And still not a hint of the legislation, let alone the regulations that would have to follow (often where the "meat" of the law lives).*

Should I go on? Just a few more thoughts, I promise.

What exactly are we to "reimagine" these "facilities" as?

Reimagine Residential Facilities
Under a new delivery system, facilities will no longer be used as long term residences. Instead, they may be adapted and reinvented in keeping with the principles of the transformation. The province will no longer fund the expansion of the old model of support which includes Regional Rehabilitation Centres (RRC) and Adult Residential Centres (ARC). This will not happen overnight. As we move away from the old model, there will be a focus on community-based residential living options. 

And when, exactly, will referrals actually stop? Just how long can a "temporary" placement in one of these institutions last?

Sorry, I didn't quite catch that ... how many years was that?

All right, all right. I hear you.

I will leave it to you to peruse the rest at your leisure.

But before you go, anyone interested in a little history on the Roadmap?

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.

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.

INCLUSION IS NOT A PROGRAM

BUT MUCH MORE IMPORTANTLY, INCLUSION IS NOT AN OPTION.

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.

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.

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.

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.