In a 7-2 split decision, this past Friday in the case of S.A. v. Metro Vancouver Housing Corp, the Supreme Court of Canada overturned British Columbia’s Court of Appeal’s decision on discretionary (Henson) trusts. In doing so, the court has set a precedent that will serve to shield the rights of persons with disabilities and helps to reduce poverty.
Discretionary trusts are used by parents and family members of persons with intellectual disabilities to provide financial security for their loved ones. The court decided that discretionary trusts should not be considered assets when determining income levels because the beneficiary cannot unilaterally force the trustees to make payments.
The appellant in the case was an individual with a disability living in a Metro Vancouver Housing Corporation (MVHC) complex. They were required to provide income verification every year as part of their application for rental assistance. In 2015, MVHC declined to approve the appellant’s application after learning that they were the beneficiary of a Henson trust. The Supreme Court ruled a Henson trust could not disqualify the appellant from being considered by MVHC for rental assistance.
The central issue in the appeal was whether assets in a Henson trust could be considered assets to assess an individual’s eligibility to receive social assistance benefits. This issue is of importance to people with disabilities as Henson trusts are a common estate planning tool used by families to ensure that their loved ones have a measure of financial security and autonomy after their death.
People First of Canada (PFC) and the Canadian Association for Community (CACL) served as co-intervenors advocating on behalf of the many persons with disabilities, and their families who regularly rely on discretionary (Henson) trusts as a tool to combat the systemic disadvantage and poverty persons with an intellectual disability face when their parents die.
Shelly Fletcher, Executive Director of PFC, responded that “For many of the people with disabilities that make up People First, discretionary trusts provide a modest level of financial stability after family members have passed away. But it isn’t like these folks are sitting on excess funds that can be used at their discretion. It is always encouraging when people with disabilities are heard – and today it feels like People First was heard loud and clear at the Supreme Court.”
“People with disabilities continue to face barriers in their participation as equal members of Canadian society. There is still more work to be done, but today we will celebrate,” said Joy Bacon, President of CACL.
This ruling does help, but it does not eliminate the need for good public policy that addresses the longstanding poverty of people with an intellectual disability, the barriers they face, and issues they encounter before and after their parents die.
Guy and Elaine Peters of the Giving Dreams Foundation have donated $20,000 to Brampton Caledon Community Living to provide individuals with community outings that promote social inclusion. The Giving Dreams Foundation, which will be winding down, has been a steadfast supporter of Brampton Caledon Community Living for many years. The Peters, who have a daughter with a developmental disability, said “it has been our pleasure to help Brampton Caledon Community over the years provide opportunities for social inclusion.”
Brampton Caledon Community Living thanks the Peters and the Foundation for this generous donation and tremendous support over the years.
On December 3, 2018, the International Day of Persons with Disabilities, the Government of Canada announced that with the support of all provinces and territories Canada has acceded to the Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This means that Canadians can now make complaints to the UN Committee on the Rights of Persons with Disabilities of violations of their rights guaranteed under the CRPD. As well, it means that Canada will allow the UN body responsible for the CRPD to undertake systemic inquiries into rights violations in Canada. In doing so, Canada has equipped persons with disabilities, both as individuals and as groups, with new avenues to seek justice and defend their rights.
Second, the government announced its intention to amend the Canadian Human Rights Act to empower the Canadian Human Rights Commission to monitor the federal implementation of the CRPD in Canada independently, and to ensure the Commission has the resources for this purpose. The CRPD calls for the appointment of an independent monitoring mechanism, and so this is another step in bringing Canada fully into compliance with the treaty.
On November 22, 2018, the PC government announced reforms to social assistance in Ontario. Following a 100-day review of Ontario Works (“OW”) and the Ontario Disability Support Program (“ODSP”), Minister Lisa MacLeod criticized the current system, stating that it created a “cycle of dependence” and proposed a complete over-haul of the system and its administration.
While the government spends $10 billion on social assistance annually for 1 million people, the Minister claimed that one in seven remain in poverty. In addition, half of the people on OW who successfully transition into the workforce end up coming back into the system. The Minister emphasized the need for a “wrap-around” approach that would empower individuals, rather than “police” them. For persons with disabilities, the Minister underscored simplifying programs, reducing red tape and allowing for greater flexibility.
While details are sparse, here is what we know about the PC plan to improve social assistance:
Definition of Disability for ODSP: The government intends to align the definition of disability with the federal standard, while those already on ODSP would be grandfathered into the system.
ODSP Eligibility: Financial eligibility for ODSP will be reviewed annually, rather than monthly.
ODSP Earning Exemption: Those on ODSP will receive a flat $6,000 annual exemption, without reducing their assistance. Twenty-five percent of earnings above $6,000 would be exempt. This is $1,200 more per year than the Liberals provided for earlier this year.
OW Earning Exemption: Recipients of OW will be able to earn up to $300 per month, without reducing their assistance (up from $200). Twenty-five percent of subsequent earnings would be exempt. Exemptions would start after one month on assistance, rather than after the usual three-month waiting period.
LIFT Credit: The Low-Income Individuals and Families Tax Credit (“LIFT”) will allow individuals earning nearly $30,000 per year to keep an extra $850 annually.
Multi-ministerial Approach: Minister MacLeod was joined by the Minister of Training, Colleges and Universities during the announcement and highlighted the need for greater coordination among ministries.
Locally Focused Services: Municipal partners will be empowered to deliver services locally, including the creation of a local OW discretionary fund. The government has also tabled legislation on November 21, 2018 establishing a “Social Assistance Research Commission,” an advisory group appointed by the Lieutenant Governor that will recommend ODSP and OW rates for each region in Ontario based on economic geography and the cost of living.
Website: A new website has been launched to better match job seekers to employers (Ontario.ca/openforbusiness).
A Brampton single mother’s quest for support for her adult son with disabilities concludes with court order for the estranged father to pay $518 a month indefinitely. Ruling is the final chapter in a constitutional challenge that changed provincial legislation.
The Ontario Human Rights Commission (OHRC) has released its new Policy on accessible education for students with disabilities, along with recommendations on how to best meet legal obligations under Ontario’s Human Rights Code.
The recommendations set out actions the government, schools and post-secondary institutions should take to make the education system inclusive, function effectively and allow students with disabilities to thrive.
“All students have the right to an education that allows them to meet their full potential and contribute to society, and yet students with disabilities continue to face obstacles accessing education services in Ontario,” said OHRC Chief Commissioner Renu Mandhane.
On July 12, 2018, Brampton Caledon Community Living’s Caledon Connections in conjunction with the Caledon Public Library held their opening night art gala. The exhibit, Endless Possibilities, will be displayed on the upper floor of the Albion – Bolton library branch until Sept 12th, 2018.
The evening was attended by artists, family members and BCCL Staff. We were also fortunate to have Caledon Mayor Alan Thompson and the Minister of Tourism, Culture and Sport Sylvia Jones attend the show. They both congratulated the artists on their work and spoke about the talented people we have in Caledon. The Caledon Library, who is a great supporter of BCCL, presented the artists with a token of their appreciation for the display of their work.
On July 16, 2018, the Ontario Superior Court of Justice released its decision in Canada Without Poverty v A.G. (Canada) (2018 ONSC 4147). The court ruled that:
-the 10% limit on a registered charity’s spending on non-partisan political activities is unconstitutional
-the definition of “charitable activities” in the Income Tax Act (ITA) includes non-partisan “political activities” if the activity is in support of the charity’s charitable mandate, and partisan political activities (i.e. advocating for a political party or candidate) remain prohibited.
As a result, a registered charity may devote more than 10% of its resources on non-partisan political activities (i.e. public advocacy that supports its charitable mission) without jeopardizing its registered charity status.
The decision provides more freedom to registered charities to engage in public advocacy, which for many charities is critical to carrying out their charitable mandates. At the time of publication, the Attorney General had not appealed the court’s decision.