Landmark Supreme Court Ruling Helps to Secure Financial Future for Persons with Disabilities

TORONTO, ON – 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.

The full text of the case is available here.

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Media Contact: Kurt Goddard, Director of Public Affairs, CACL, kgoddard@cacl.ca

 

CACL is composed of ten provincial and three territorial associations, with over 400 local associations spread across the country and more than 40,000 members. CACL leads the way in helping Canadians build an inclusive Canada by strengthening families, defending rights, and transforming communities into places where everyone can belong. PFC is a self-advocacy organization with a membership made up of people who have been labelled as having intellectual disabilities and has approximately 3,300 members nationwide. 


Canada's First Poverty Reduction Strategy Promising for People with an Intellectual Disability

TORONTO, ON – The Canadian Association for Community Living (CACL) welcomes the release of Opportunity for All – Canada’s First Poverty Reduction Strategy and its significant focus on social inclusion and the tremendous potential it appears to offer persons with an intellectual disability.

CACL looks forward to the implementation of the Strategy and to working with the Government of Canada over the coming months and years. It is critical for government infrastructure to maximize the effectiveness of its investment. As the Poverty Reduction Strategy and its various initiatives unfold, we encourage the Government of Canada to keep the lived experience of people who have an intellectual disability in mind and included.

“Persistent poverty remains, and it can only be addressed by both income and disability-related supports,” said Joy Bacon, President of CACL.

Some indicators of an approach inclusive of persons with an intellectual disability could include – but are not limited to – representatives from the intellectual disability community on the advisory council, up-to-date data on persons with a disability within the Strategy’s Gender-based Analysis Plus (GBA+), and the inclusion of current out-of-pocket expenses that persons with a disability spend to be added to Canada’s Official Poverty Line calculation known as the Market Basket Measure. CACL is pleased to see that the Canada Income Survey will be designed to be able to report on income and disability. We strongly recommend that sufficient data be collected to be able to track progress by type and range of disability.

In addition, CACL hopes that the Government of Canada takes leadership with its provincial and territorial partners to ensure that Canada’s first national Poverty Reduction Strategy is implemented to its fullest potential.

“It is critical to know we are making a difference. CACL remains committed to exploring and advancing conversations about the unmet needs for income support for persons with an intellectual disability,” said Krista Carr, Executive Vice-President of CACL.

CACL welcomes the focus of the strategy on inclusion and looks forward to working with the Government of Canada. We also echo Mile Corak’s, Economist in Residence at Employment and Social Development Canada, forward in the Strategy that, “Credit is due, not when budgets are spent, but when outcomes we care about are efficiently and effectively achieved.”

CACL is composed of ten provincial and three territorial associations, with over 400 local associations spread across the country and more than 40,000 members. CACL leads the way in helping Canadians build an inclusive Canada by strengthening families, defending rights, and transforming communities into places where everyone can belong.

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Media Contact: Agata Zieba, Senior Communications Officer, CACL, azieba@cacl.ca.


Inclusion Matters - August 2017

The August 2017 edition of Inclusion Matters is now online.

Learn about what the CACL National Association is up to – new initiatives, CACL volunteer and staff announcements, special issues on government policy, upcoming events, new publications and more…

August 2017 Edition of Inclusion Matters

Inclusion Matters - May 2017

The May 2017 edition of Inclusion Matters is now online.

Learn about what the CACL National Association is up to – new initiatives, CACL volunteer and staff announcements, special issues on government policy, upcoming events, new publications and more…

May 2017 Edition of Inclusion Matters

Law Commission of Ontario Rejects Proposals to Advance Rights of People who have an Intellectual Disability

On March 8, the Law Commission of Ontario released its long awaited Final Report on Legal Capacity, Decision-Making and Guardianship. The report goes to some length to flatly reject detailed proposals it received from the Coalition on Alternatives to Guardianship, which includes Community Living Ontario, People First of Ontario, People First of Canada and the Canadian Association for Community Living. For over 25 years, the Coalition has called on governments to provide an alternative to guardianship because for so many people it stands as a fundamental violation to their human rights, a reality the United Nations acknowledged over a decade ago. Guardianship removes people’s power over their own lives.

The Coalition recommended the Law Commission of Ontario recognize supported decision-making as one option for situations where people are unable to make personal decisions independently, and we provided a comprehensive draft statutory framework developed by legal experts.

“The reforms we put forward would give legal recognition to what so many people and families now do in practice, which is interdependent decision-making guided by a person’s will and preferences,” said Chris Beesley, Chief Executive Officer of Community Living Ontario.

Supported decision-making is legally recognized in British Columbia, the Yukon, Manitoba and increasingly in jurisdictions around the world. As well, it has been recognized in the UN Convention on the Rights of Persons with Disabilities, which Canada ratified in 2010.

“The Law Commission failed Ontarians who have an intellectual disability and their families, because everyone should be able to have power over their own lives, regardless of whether they need support or not,” said Kory Earle, President of People First of Canada. “The reality is that many people who have an intellectual disability cannot even change their address with the Canada Revenue Agency or open a Registered Disability Savings Plan without a guardian being appointed. We’re asking the Government of Ontario to follow the lead of other provinces and territories by providing a third option, so that we have more of a say when we go to the bank, speak with our doctor or participate in the community in other ways.”

The Coalition has recommended a series of robust safeguards to protect people under supported decision-making, including specified commitments by supporters, enabling the appointment of monitors, notification of a supported decision-making arrangement being put into place, measures to investigate situations of harm, abuse or neglect, and the creation of a special tribunal to consider complaints and to mediate disputes among supporters and individuals.

“The Law Commission adopted all these recommendations, but only for those under powers of attorney. It says it would be too complex to extend these safeguards to supported decision-making, where people are not able to appoint a power of attorney. Instead, it calls for more research,” stated Brendon Pooran, Principal at PooranLaw Professional Corporation. “I receive calls from families every day in my practice looking for an alternative because their son or daughter cannot appoint power of attorney and the costs and complexities of guardianship, not to mention that it removes their family member’s legal personhood, rightfully prevent people from pursuing that option. People who have an intellectual disability should not be required to forfeit their right to make their own decisions due to gaps in our legislative framework.”

Extensive studies on supported decision-making have been conducted in Canada and internationally, the practice has been in place in other provinces for years, and it is recognized by the United Nations. As far back as the early 1990s, the Coalition has called on the Government of Ontario to include the option of supported decision-making when the Substitute Decisions Act was first introduced. At that time, it was the government who called for more study.

In response, Community Living Ontario developed detailed proposals and the Canadian Association for Community Living also produced a major report titled Alternatives to Guardianship. However, the government failed to act on any of the recommendations. Since then, calls have grown in Ontario to introduce supported decision-making, including from the Ontario Legislature’s Select Committee on Developmental Services in its 2014 Report. We trust Premier Kathleen Wynne and Attorney General Yasir Naqvi will finally take the necessary leadership, go beyond the Law Commission of Ontario’s far too limited vision, and enact significant and meaningful change to at least recognize the rights of all Ontarians to inclusion, citizenship and equal respect for the right to legal capacity.


The Passing of Disability Champion Dianne Pothier: A Letter from EVP Michael Bach

Dianne Pothier, leading expert on constitutional law and a long-time champion of disability rights, passed away unexpectedly January 3rd 2017 at home in Halifax, NS. The following is a letter to the Community Living movement and its allies from CACL EVP Michael Bach.

It is with such a profound sense of loss and sadness that I share the news of the sudden and unexpected passing of Dianne Pothier.

Dianne was instrumental in helping to draft the Vulnerable Persons Standard. Catherine Frazee and I reached out to her last January as we started to design the VPS and consider the legal and ethical arguments for robust safeguards. Dianne taught for a number of years at the Dalhousie University Schulich School of Law, and brought a keen mind, brilliant insight and analysis, and prodigious publication. As Canada’s leading disability rights scholar she leaves an immense and invaluable legacy for disability rights legal theory and practice.

Read more at CACL

Nominate a volunteer for Canada's Volunteer Awards

Canada’s 150th anniversary is fast approaching in 2017. During this celebration year, it is important to acknowledge that our country would not be the same without the work of volunteers. Recognize the important work of volunteers across the country by nominating someone for Canada’s Volunteer Awards.

You are invited to nominate a not-for-profit organization, an individual, a group or a business who is making a difference in their community to receive an award.

The call for nominations is now open until February 3, 2017.

Read more & nominate today!

Canada begins process to accede to the Optional Protocol of UN CRPD

There were expressions of triumph and joy from representatives of self-advocacy and disability rights groups, including the Canadian Association for Community Living and People First of Canada, following the announcement that the Government of Canada has begun the process to accede to the United Nations’ Optional Protocol to the Convention on the Rights of Persons with Disabilities.

CACL was in Ottawa on December 1st when the Honourable Stéphane Dion, Minister of Foreign Affairs, and the Honourable Carla Qualtrough, Minister of Sport and Persons with Disabilities, made the announcement.

“Our willingness to move this protocol forward is a significant step in supporting the rights of Canadians with disabilities. This announcement helps us foster equality and inclusiveness and brings us closer to a more accessible Canada,” said Minister Qualtrough.

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Tenth anniversary of the Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities (CRPD) was adopted by the United Nations General Assembly on December 13, 2006. It was a historic milestone in advancing the rights and development of persons with disabilities.

The year 2016 marks the 10th anniversary of the adoption of the CRPD which continues to play a critical role in promoting the inclusion of persons with disabilities and their perspectives in the global agenda.

Over the past decade, progress has been made in disability-inclusive development at the international, national and sub-national levels.

Read More at CACL