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. 


National Housing Strategy Makes Historic Investment: 2400 New Affordable Housing Units for People with Developmental Disabilities

Today Prime Minister Justin Trudeau announced the National Housing Strategy, with a target of 2400 new affordable housing units that enable community-based independent living for people with developmental disabilities. The Canadian Association for Community Living (CACL) and People First of Canada (PFC) welcome this historic announcement.

Joy Bacon, CACL President said, “We are thrilled with the Prime Minister’s announcement today. A dedicated investment to create at least 2400 new affordable housing units for people with developmental disabilities will have a transformational impact on building inclusive communities right across this country.”

Kory Earle, President of People First of Canada said, “An equal right to housing is long overdue. Far too many people with intellectual disabilities are homeless, and dying unnecessarily. Canada used to invest in institutions for us. Finally, the government recognizes we deserve a home, in the community, just like everyone else. We are incredibly grateful to the Prime Minister and Government of Canada for hearing our voice and heeding our call. To be part of this national strategy truly means we belong as equal citizens of this country.”

This investment will be welcomed in communities across Canada. Krista Carr, CACL Executive Vice-President said, “Our local and provincial/territorial associations stand ready to partner with all levels of government, with other community sectors, and with housing developers to develop and activate the plans needed to reach this target. It is an extraordinary opportunity, a watershed moment in Canada’s recognition of the rights and inclusion of people with intellectual disabilities. There is a lot of work ahead. But we have the capacity and partnerships ready to make this happen.”

Never before has the Government of Canada so clearly recognized the housing needs and housing rights of this group. We estimate that over 100,000 Canadians with intellectual and developmental disabilities currently live in precarious and vulnerable housing situations in Canada – over-represented among the homeless population; living with aging parents who can no longer manage and too poor to live more independently; congregated in residential facilities that deny basic housing rights; and, placed in nursing homes and long-term care because they are unable to access affordable and supportive housing in the community. The consequence is hugely disproportionate social isolation, economic exclusion, poverty, preventable deaths and victimization among people with intellectual and developmental disabilities in Canada.


Call to Government to Address the Critical Needs of Vulnerable People in the Upcoming Budget

Services to Manitobans with intellectual disabilities are at a critical impasse. Funding has not been adjusted for cost of living increases in six years; there’s a lack of standardized training and constant staff turnover. Manitobans with intellectual disabilities are calling on the government to demonstrate that they are important in this next budget.

“It takes time for my daughter to build a relationship and to trust. It’s this trusting relationship that allows her to feel safe. When she’s not feeling safe and supported her anxiety grows and when her anxiety grows her behaviour changes. When she feels safe and protected she blossoms,” said Gloria Woloshyn, a concerned mom.

Families are waiting beyond ten years for residential services and only receive services in crisis situations. Staff that are doing complex work are getting paid the same as a server at a coffee shop and vulnerable people are seeing constant turnover in their support staff, leaving them at risk.

“There have been times where my daughter has built a good relationship only to have it gone. It hurts to watch this over again and again. In many cases, the relationship ends, not because the worker wants to leave, but because the worker cannot afford to stay. My daughter is caught in the middle of this unhealthy circle and it’s really sad to watch,” said Gloria.

Over 6000 adults with intellectual disabilities in Manitoba are affected by budget decisions made by the provincial government. Most are supported by non-profit, community agencies that fall under the Abilities Manitoba umbrella. These community agencies offer varied services including residential, employment, day, and respite supports.

“Family members are telling us they’re worried about funding. They’re afraid of cuts to front line services and that a system already fraught with problems will be further jeopardized.” said Margo Powell, Executive Director of Abilities Manitoba. This concern is compounded by the fact that funding has been flat-lined since 2011 which has resulted in many non-profit agencies being stretched further and further to deliver high-quality supports.

Last April, at the Chamber of Commerce Leader’s debate, Premier Pallister was quoted as saying, “The best governments are always the ones that put the interests of vulnerable people first. I will do that as Premier.” We call on the provincial government to fulfill Premier Pallister’s words and show that Manitoba truly cares about people with intellectual disabilities and front line services critical to thousands of Manitoba families.


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.


Canadian Government Launches a National Consultation Process for Proposed Canadian Accessibility Legislation

The Government of Canada is committed to eliminating systemic barriers and delivering equality of opportunity to all Canadians. In June 2016, the Honourable Carla Qualtrough launched a national consultation process for proposed Canadian accessibility legislation. and all Canadians have the opportunity to be part of that consultation. Your voice can be heard.

The Alliance for an Inclusive and Accessible Canada is currently conducting focus groups in select cities across Canada. Even if you can’t attend in person you still have the opportunity to complete an on-line survey.

A federal accessibility law would mandate accessibility standards in federally regulated programs and services and would be a major step in Canada meeting its obligations under the UN convention on the Rights of Persons with Disabilities.

Be Heard. Complete the On-line Survey