A Primer on Special Needs and the Law

A Change in Substance; Not Just Form

2025-05-02T16:18:00.004-03:00

I came across an interesting article in Disability Scoop recently.

"Most adults with disabilities in Maine who are assigned legal guardians to take charge of
their affairs are not represented by lawyers to protect their interests during the process, according to a new report that calls for reforms in the guardianship system.

Although an American publication, this was the exact situation in Nova Scotia under the former Guardianship Act. However, that legislation was repealed in 2018 and replaced by the Adult Capacity and Decision-Making Act.

This was much more than a few tweaks and a change in title*.

The ACDMA completely overhauled our adult guardianship legislation. I have written a lot over the years about our former system but would draw your attention in particular to this post. From where I sit , this was (for the most part) a change in the right direction.

Perhaps one of the most impactful changes was the fact that if there is any question as to the adult's level of capacity, Legal Aid will now serve those documents on the adult and explain what it all means. This gives the adult the chance to fight the application with legal counsel if they wish.

Although under the former legislations the adult was provided with a copy of the guardianship documents, there was no mechanism in place to assist that person in understanding what they meant. Hand them over and go merrily on your way.

Many of the other changes referenced below from the Disability Scoop article are also included in Nova Scotia's new legislation.

Maine’s probate code was rewritten in 2019, in part to better enshrine the rights of adults with disabilities. The code now instructs probate courts to consider less-restrictive alternatives — including something called supported decision-making — before granting guardianship ...

The probate code also includes stronger language that says guardians must promote self-determination and involve individuals in decision-making and created a mechanism for individuals to file grievances.

* As fitting such significant changes to both the process and end result, Nova Scotia's former adult guardianship regime has been abolished and replaced by a "representation" regime under the ACDMA.

Rebuilding HOPE Conference Tidbits

2025-04-16T17:36:00.002-03:00

I attended the Rebuilding HOPE Conference on March 29, 2025. This was the second conference the
Province has held as part of the infamous Human Rights Remedy*.

My plan was (and still is) to post about the content of the Conference but I think we all know my history with planning and posting.

So as a treat (and to string you along a little ;) I offer this:

... the Honourable Scott Armstrong, Minister of Opportunities and Social Development, spoke at the conference and announced a new $9.3 million investment to support people in three programs: Flex Individualized Funding, Direct Family Support for Children, and Alternative Family Support. These programs are community-based and provide individualized, self-directed, portable funding in line with the remedy. This is an interim step as the Province transitions to permanent, individualized funding for all people with disabilities. The formal announcement is available here. The Minister also had an interview with CTV following the conference - you can watch it here. We have also attached the three presentations made during the conference for your reference.

And with that I bid you adieu until we meet again.

*With many thanks to the Disability Rights Coalition of Nova Scotia for getting us this for. It was a long and tortious process but they hung in and that makes them heroes in my book.

**You can read more about the Province's timeline to implement the Remedy here.

*** Picture courtesy of Tierra Mallorca

Medical Expenses You Can Claim

2025-03-29T19:10:00.001-03:00

Well, it is that time of year again so here you go, Medical Expenses You Can Claim

Medical Expenses You Can Claim

Go ye forth and may God (or someone/something) bless you.

POWERFUL

2025-01-03T18:21:00.000-04:00

I AM A RESIDENT

I came across this poem while I was doing some cleaning up. It's titled "I am a Resident" but if it were up to me, I would simply call it "Powerful".

I am a resident. You reside.

I have behavior problems. You are rude.

I am non-compliant. You don't like being told what to do.

When you ask me out for dinner, it's an outing. When you ask someone else out, it's a date.

I don't know how many people have read the progress notes people write about me. I don't even know what's in there. You didn't speak to your best friend for a month after they read your diary.

I made mistakes in my cheque-writing program. Some day, I might get a bank account. You forgot to record some withdrawals from your account. Your bank called to remind you.

I want to talk to the nice looking person behind us at the grocery store. I was told it was inappropriate to talk to strangers. You met your spouse in the produce department. They couldn't find the bean sprouts.

I celebrated my birthday yesterday with 5 other residents and 2 staff members. I hope my family sends a card. Your family threw you a surprise party. Your brother couldn't make it from out of state. It sounded wonderful.

My case manager sends a report every month to my guardian. It says everything I did wrong and some things I did right. You are mad at your sister for calling your mom after you got that speeding ticket.

I am on a special diet because I am a five pounds over my ideal body weight. Your doctor give up telling you.

I am learning household skills. You hate housework.

I am learning leisure skills. Your shirt says you are a 'couch potato'.

After I do my budget program tonight, I might get to go to McDonalds if I have enough money. You were glad the new French restaurant took your charge card.

My case manager, psychologist, RN, occupational therapist, physical therapist, nutritionist and house staff set goals for me for the next year. You haven't decided what you want to do for the rest of your life.

Someday I will be discharged .... maybe. You will move onward and upward.

Elaine Popovich

** This poem particularly moved me at the moment because in November my daughter entered the Independent Living Support program and moved into her own apartment with a roommate. But more on that later. Maybe.

Estate Planning & the Henson Trust

2024-12-29T18:02:00.001-04:00

I see Wilful has been advertising a lot on TV lately. Avoid the hassle and cost of seeing a lawyer. Makes sense, I suppose. But not a good idea if you have beneficiary with a disability.

If your loved one receives money from the Department of Community Services (whether from the Disability Support Program or otherwise), your Will must be carefully drafted to preserve those benefits after you’re gone. For more information, please follow the links.

Protecting Your Child’s Future with the Henson Trust

Can I Really Do That - The Henson Trust in Nova Scotia

You can also find more information but scrolling to the bottom of the sidebar and clicking on the Henson Trust label.

Experts’ Report: Human Rights Review and Remedy Summary

2024-01-03T15:41:00.008-04:00

I've been hearing a lot about the "Human Rights Remedy" from our DCS social worker lately.

The full title for the process has quite a handle; namely, the "HUMAN RIGHTS REVIEW AND REMEDY FOR THE FINDINGS OF SYSTEMIC DISCRIMINATION AGAINST NOVA SCOTIANS WITH DISABILITIES".

In a previous post giving a broad overview of the changes the Department of Community Services is now legally required to implement within the next five years, I mentioned in passing the expert's report which the government is now legally obligated to follow.

Compared to the length and complexity of the full report, the summary found here is well-worth the read. It summarizes the six key decisions arising out of the process; namely,

individual planning and support coordination

closing institutions

community-based supports and services

a program that works in all areas of the province and many professionals work together to support local choices

individualized funding; and

disability system capacity.

Check it out.

The Devil in the Details [NS Human Rights Decision]

2023-07-18T13:57:00.008-03:00

In my last two posts, we discussed the huge changes that are in the works for Nova Scotia's Disability Support Program.

Let's see how quickly I can do a "quick" summary of the background. As if ...

Three individuals with intellectual disabilities were kept in a locked ward in the Nova Scotia Hospital
for literally decades long after they should have been discharged and placed in the community. Possibly the world's best human rights case ever (in my humble opinion, at the moment, but I admit that I might be a little biased) followed a lengthy and tortured legal process until it finally resulted in a settlement [approved by the NS Human Rights Commission, thus, giving it the force of law (which, trust me, is HUGE)] that will radically change how (and where) services are provided to individuals with intellectual and developmental disabilities in Nova Scotia.

I set out a broad overview of what the changes will look like in my last post, but noted that I hadn't yet read the text of the HUMAN RIGHTS REVIEW AND REMEDYFOR THE FINDINGS OF SYSTEMIC DISCRIMINATION AGAINST NOVASCOTIANS WITH DISABILITIES (aka "the expert's report"), which, despite it's length (to call it lengthy would be a serious understatement), I do intend to get to. Hey, one DSP worker who actually read the report said it was "very long but very interesting". How could I not delve into that?

Alas, I digress, as usual - for now, I will share with you a more detailed explanation of the time line for these radical changes (courtesy of the Disability Rights Coalition)*.

Highlights of the Report and interim settlement include:
Deinstitutionalization

 In year 1, the Province will institute a “no new admissions” policy to DSP funded institutions

 By year 3, 75% of those people currenting residing in ARCs, RRCs and RCFs will be living in community based settings.

 Within five years, or by March 31, 2028, the government will close all institutional settings for persons with disabilities.

Individualized Planning Supports and Funding

 In year 2, the new individual planning and coordination and individualized funding system will be full operational which includes an accessible system designed with users in mind.

 In year 2, a province wide critical response team will be fully established to ensure people in crisis have immediate access to supports and services as well as multi-disciplinary teams to meet needs wherever people choose to live in Nova Scotia

Supporting People in Their Community of Choice

 In year 1, the Local Area Coordination model will begin with the creation of 25 new local area coordinators and local area coordination leads in all 4 regions and by year 3 there will be 80 local area coordinators throughout Nova Scotia. Putting an end to years-long delays in accessing social assistance

 In year 3, all persons currently on the DSP waitlist and receiving no access to social assistance will be provided with full access to the supports and services they require to live in community

 In year 5, the DSP waitlist will end, with new applicants being provided with immediate access to navigational supports and services and, where appropriate, emergency response.

Yeah, I too, am wondering how everything can occur on that exact schedule when the Province has openly admitted it needs to hire 100 more social workers, which they will do that at the rate of 25 per year.

Hmm, I know math has never been my strongest but ... How does that go again?

100/4 = 25.

Nope, it must be that new math:

100/4 + 30.5-75 x 10 + 12 = nothing to see here; move along now

Yeah, that's it. That's the ticket.

* No, it wouldn't be too far beyond the realm of possibility for me to call the Disability Rights Coalition my heroes (and seriously, yours and yours and yours, too)

The Continuing Saga of Human Rights in Nova Scotia

2023-06-20T16:44:00.007-03:00

In my last post, we discussed the (hopefully) upcoming changes to the Disability Support Program following the ruling of the NS Court of Appeal in the human rights case involving three residents of the NS Hospital.

I gave some of the backstory and talked about the interim agreement reached between the Disability Rights Coalition and the Province.

Believe me, after all these years, I'm as cynical as anyone else when it comes to wholesale changes in how (and if) Nova Scotia delivers services to individuals with disabilities.

But the one change (and if this doesn't make a difference, I can't see how anything else ever will) in this case is a decision with the force of law behind it.

The NS Court of Appeal agreed with us and the Supreme Court of Canada denied the Province's leave to appeal so .... there's really nowhere else for them to go.

Our family attended one of the in-person sessions held across the Province and it was ... interesting. Kentville was suppose to be the third meeting but ended up being the first and the Province readily admitted that it wasn't prepared for the turnout.

A few interesting take-aways from the meeting.

The Province has 5 years to implement all the changes set out in the Agreement.
They will need to hire 100 more social workers to make this work.
The plan is to hire 25 social workers every year.*
The waiting list that always 'wasn't** will no longer exist.
Instead your worker will come to you to ask where and how you want to live.

A very astute person in the audience asked what would happen if suitable housing wasn't available (which seems to be the case for a lot of people in the Province, with disabilities or not). The response was something to the effect that if you couldn't find what you were looking for, you would need to wait until you could. I assume that meant you would need to 'settle for something else' (of your choice) in the interim but you know what they say about the danger of assuming. Although I suppose we can't legitimately ask the Province at this point to figure that (or a lot of other things) out right away.

The sessions are over now so I hope at least some of you attended.

BUT the reason I started this post was ... [drum roll please] ... I actually read the plain language executive summary of the independent expert report today. I found it a little hard to navigate at first - how the heck do I find p. 2 - but it turns out the squiggly little up and down arrows at the bottom of the page did the trick. It's very short and I make no comment on its sweetness but I would suggest we all at least start there.

The full report (which I admit I have not yet read) can be found here.

Very well. Carry on.

*Meaning that it will take 4 years just to get the staff they need.

** I assume most of us have found that depending on who you speak with (and when), there may or may not be a waiting list for services.

URGENT: Disability Support Program

2023-05-31T19:00:00.007-03:00

Back in the mists of time, we briefly discussed a human rights complaint brought against the Province regarding the Disability Support Program.

The case has had a very long and somewhat torturous* history (during which the provincial government repeatedly flipflopped on whether it would appeal any adverse rulings**), but at the end of the day, it has turned into a ground-breaking human rights decision from Nova Scotia (of all places!).

At any rate, a huge shout out to the Disability Rights Coalition, who spearheaded the whole thing.

For anyone not in the know, back in 2015, a human rights complaint was brought against the Province regarding three intellectually challenged adults who had been locked in a mental institution for (literally) years for no good or defensible reason. Although legitimately admitted at one point, they were trapped there long past when they should have discharged because no "suitable housing" could be found in the community.

Although initially successful for the three individual complainants***, the Commission refused to extend its remedy in a way that might help other individuals subject to the Disability Support Program's residential options.

Eventually, we made it to the Nova Scotia Court of Appeal where the claim of systemic discrimination was found to be valid.

HALLELJUAH

An interim settlement was negotiated, with yet another independent expert report, this time to advise to how the systemic discrimination in the Province's provision of supports and services could be resolved.

However, unlike other studies and reports over years which were shelved by the government, this one has some teeth. You can read the full report here, but if you would prefer the Executive Summary in "plain language" (I know I would!), I suggest you go here.

All of which had led us here:

... there will be a series of in-person sessions held across the Province for participants and their families/support networks. The sessions will be an opportunity to com together to discuss the content of the technical report and the next steps.
The sessions will take place between May 30 and June 14 in nine communities across the province. Please see below for the schedule. Each session will be two hours and will consist of a brief presentation from People First Nova Scotia (disability self-advocacy organization) reps along with Randy Acker, DSP Director. There will be time for smaller individual and group discussions within the venue to allow people to ask questions and gather the information they need. Light snacks and refreshments will be provided. If participants require additional transportation funding to attend the session, please contact your care coordinator.
The list of dates and locations follow:
Bridgewater - NSCC - Lunenburg Campus 75 High St Bridgewater, NS B4V 1V8 Tuesday May 30 -- 1:30-3:30 PM or 5:30-7:30 PM
Yarmouth -YACRO Hub 6 Thurston St. Yarmouth, NS B5A 4K5 Wednesday May 31 -- 1:30-3:30 PM or 5:30-7:30 PM
Kentville - Kentville Fire Dept 463 Main St Kentville, NS B4N 1K9 Thursday June 1 -- 1:30-3:30 PM or 5:30-7:30 PM
Pugwash - Cumberland Public Libraries - Pugwash Branch 10182 Durham St Pugwash, NS B0K 1L0 Tuesday June 6 -- 1:30-3:30 PM or 5:30-7:30 PM
New Glasgow - Summer Street Industries 72 Park St. New Glasgow, NS B2H 5B8 Wednesday June 7 -- 1:30-3:30 PM or 5:30-7:30 PM
Dartmouth - NSCC Ackerley Campus 21 Woodlawn Rd Dartmouth, NS B2W 2R7 Location - Gymnasium Entrance #7 Thursday June 8 PM -- 1:30-3:30 PM
Halifax - Club Inclusion 2652 Joseph Howe Dr Halifax, NS B3N 1J2 Thursday June -- 8 5:30-7:30 PM
Whycocomagh - Whycocomagh Waterfront Centre 9650 NS-105 Whycocomagh, NS B0E 3M0 Tuesday June 13 -- 1:30-3:30 PM Sydney - NSCC Marconi Campus – Room B101B 1240 Grand Lake Rd Grand Lake, NS B1P 6J7 Tuesday June 13 – 6:00-8:00 PM Wednesday June 14 -- 10:00-12:00 noon

WE SERIOUSLY NEED TO SHOW UP FOR THESE SESSIONS

~ ~ ~ ~ ~

* In other words, yes, you messed up and must compensate these individuals but we're not going to touch the bigger problem (lack of adequate housing and community supports) for those with intellectual or developmental challenges. Can't touch that with a ten-foot pole.

** After several flip flops as to whether or not the government would take these poor people on social assistance to court by two different governments (first Liberal, then Conservatize), the Province just did just that, challenging the monetary compensation ordered. Fortunately, the Disability Rights Coalition cross-appealed the finding of no systemic discrimination.

** Cash awards were made to each complainant between $200,000 and $300,000. Unfortunately, two of the adults passed away before the case made it to the Court of Appeal.

Buried in Budget 2023 ...

2023-03-31T14:37:00.001-03:00

Some quick snippets from Inclusion Canada concerning some positive signs from the most recent federal budget.

Frist, the provision allowing certain family members to open a RDSP on behalf of an adult with an intellectual disability has been extended and expanded.

Budget 2023 extends the “qualifying family member provision” until December 2026 and has extended this provision further to allow siblings to also become plan holders where the decision making capacity of the individual with the intellectual disability is called into question. Most importantly, the federal government has issued a call to action to the provincial and territorial governments to address issues around guardianship for people with intellectual disabilities.

Then, the pilot of a new automatic tax filing system for individuals with disabilities.

Another subtle victory for people with intellectual disabilities in Canada: the government intends to pilot a new automatic tax filing system for vulnerable Canadians. This has the potential to remove roadblocks and improve access to government benefits and programs for people with disabilities.

Finally, the first budgeted figure for the Canadian Disability Benefit.

Yesterday's budget committed $21.5 million to the groundwork for the development of the Canada Disability Benefit. We are encouraged by this commitment ,however we will be looking for a more substantial commitment to the actual funding of the benefit in the fall economic statement after the Bill receives royal assent.

Carry on.

#Where's The Bill?

2023-01-15T12:14:00.007-04:00

Following up on my last update on the Canada Disability Benefit, I have some more news to share.

According to Disability Without Poverty, during the Committee process a few positive changes have been adopted, including

indexing the benefit to inflation;
a requirement that agreements with provinces and territories be made public;
a requirement that people with disabilities be meaningfully engaged in developing regulations; and
requiring the Official Poverty Line to be considered in setting the benefit.

As for what's next, once Parliament re-opens on January 30, Bill C-22 must be put on the agenda so the the HUMA committee report can be presented and voted on. This vote will move the Bill into Third Reading and eventually the Senate. After the Senate passes Bill C-22 and it receives royal assent, it will become law.

The Regulations

In my mind, the most important of the amendments set out above might just be the requirement that people with disabilities be meaningfully engaged in developing regulations.

As I've noted before, passing legislation is far from the end of the story. Regulations are always important in that they flesh out the legislation and deal with important details. They often contain some of the meat and the teeth of the law.

However, in this case, they're even more important because unfortunately, the legislation, itself, tells us very little. The proposed legislation isn't much more than a bare bones skeleton.

All we know is that those eligible (nothing tells us who that might be) will be paid a Canada Disability Benefit. [ss. 4-5]

Other than that, the only other thing of import is that this "benefit" (however much it might be) can't be taken in cases of bankruptcy, garnished if you owe someone money or otherwise be taken away by operation of law. [sec. 9] **

Good news to be sure but .... how much and to whom? Kind of important details, wouldn't you agree?

Sadly (and ironically), if this legislation became law today, not a single Canadian (with or without a disability) would benefit. It wouldn't even make a good paperweight, given how short it is.

This is why the requirement that people with disabilities (and presumably their allies) must be meaningfully engaged in developing the regulations is so crucial.

And time passes.

** Fortunately, this includes the Dept of Community Services. They won't be unable to claw the benefit back. Now that's worth celebrating.

Update on Canada Disability Benefit Act

2022-10-29T16:04:00.009-03:00

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.

It is very rare for new legislation to come into effect right away. The date new legislation comes into effect can usually be found near the very end of the document. Occasionally, it sets a specified date when this will occur, but more often, it says it will come into effect when given royal assent.

In Canada, legislation requires the approval of the Governor General or another designated representative of the Crown, aka King Charles. The real catch here is that doesn't happen until the government requests it, meaning legislation can sit around a very long time before it ever comes into effect. However, even that is often not the end of the story.

Regulations

For most legislation (federal or provincial), the provincial or federal government will enact regulations under the statute.

It works like this.

Legislation passed by Parliament sets out broad legal and policy principles about a topic. It describes requirements and can include punishments for breaking the law. Regulations, rules, by-laws and some codes (subsidiary legislation) define and control how an authority operates to implement the law.

To put it another way, the legislation gives the broad outlines of what the government can and cannot do and/or what you and I as citizens are allowed and not allowed to do. The regulations fill in the some of the details that is missing from the legislation itself. Both statutes and regulations have the force of law BUT nothing in the regulations can be contrary to anything set out in the legislation. In other words, the legislation is the boss and the regulations are just the helpful assistants tasked with doing as they are told and filling in some of those nitty gritty details.

In this case, everything of note (such as who will be eligible, how much individuals will receive or if it's a one-time payment or annual benefit) have been left to the regulations* . Regulations that haven't even been drafted yet and won't be in final form until sometime after the Act is passed.

For this particular legislation, the statute, once it is passed, will be little more than an empty shell. What really matters, what we really care about and need to know with respect to the the Canada Disability Benefit will not be drafted until ... who knows? Not I.

~ ~ ~ ~ ~

If you're interested in learning more details as to how the legislative process works with the federal government, you can find it here. Otherwise, the link above should give you what you need to understand the interaction between legislation and regulations with respect to the Canada Disability Benefit.

* Clause 11 of the Act provides for regulations to be drafted respecting the eligibility criteria,

conditions to be met in order to receive or to continue to receive a benefit, the amount of the benefit, possible indexing for inflation, payment periods, the amount to be paid each period, appealing a decision and more.

Major Improvements to Disability Tax Credit Eligibility

2022-10-13T18:14:00.016-03:00

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

Advocacy Is What Its All About

2022-09-30T14:43:00.001-03:00

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.

Protecting an Inheritance with the Registered Disability Savings Plan?

2022-08-28T20:17:00.010-03:00

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.

AS AN ASIDE, PLEASE NOTE THAT A HENSON TRUST DOES NOT INVOLVE THE CREATION OF A DOCUMENT SEPARATE FROM THE WILL ITSELF, BUT IS VALIDLY CREATED THROUGH THE USE OF PARTICULAR WORDING IN THE CLAUSE OF THE WILL THAT PROVIDES FOR THE BENEFICIARY'S BEQUEST.

The RDSP As the law provides that any funds held in a RDSP will not be considered as either income or an asset when calculating government benefits, if the Will places the funds DIRECTLY in a RDSP that has already been set up for the individual's benefit, access to to the DSP will not be affected.

If [and only IF] the funds go directly from the estate to the RDSP, from a legal point of view, they were never under the beneficiary's control, meaning the beneficiary never had any legal right to access the funds.

However, this requires that either the beneficiary or someone acting on their behalf has created a RDSP prior to the Will being executed so that the identifying details of that RDSP can be set out in the Will and that RDSP still be in existence when the funds are to be transferred (after the testator's death).

But What If ... In those situations where it's too late for the testator to direct that the funds be held in a Henson Trust or deposited in a RDSP (meaning after their death), the situation becomes a little stickier. There is no doubt that initially, at least, DCS would take the view that an inheritance that was directly transferred to the beneficiary (or their parent, guardian or Representative appointed pursuant to the Adult Capacity and Decision-Making Act, depending on the situation) cannot be protected by placing it in a RDSP. However, the situation is far from crystal clear.

We know that the legal test is whether the beneficiary receiving government assistance has any right to legally access the funds once they have been placed in a RDSP; however, this is not necessarily as cut and dry as we might like. It all depends on the situation. That answer comes those details will need to be the topic of a separate blawg post.

Did you honestly expect a simple response to a simple question when the answer lies in that place no one ever truly wants to go ... the place where disability law and the CRA collide?

In all honesty, I suppose I could have responded with the standard "It depends" answer, which while legally correct tends to make the listener roll their eyes and walk away thinking nasty thoughts about lawyers. And we certainly don't want to go there, do we? Not I.

** Please note that, disability or not, if the term "trust" does not appear in the clause setting out the bequest, irrespective of disability or age, the inheritance will be considered transferred directly to the beneficiary provided they are 19 or older, the parent or guardian if the beneficiary is a minor, or a legal Representative. In either of the last two situations, the law imposes a trust relationship upon the recipient, meaning that person holds those funds in trust for the benefit of the named beneficiary. Unfortunately, it's not the type of trust that will protect those funds from DCS.

Yeah .... About This Whole Blogging Thing

2022-07-06T15:45:00.013-03:00

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

2022-07-06T14:58:00.005-03:00

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 Today
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.

Public Service Announcement: Accessibility

2022-06-21T16:04:00.007-03:00

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.

The Canada Disability What??!!

2022-05-19T14:59:00.002-03:00

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.

In Residential Care Situations, What Are Essential Visitors?

2021-10-08T19:00:00.012-03:00

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.

Self-Represented Litigant Resources

2021-06-27T15:56:00.006-03:00

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.

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

2021-06-05T16:38:00.005-03:00

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??

The Chapman family (who have a nine-year-old daughter with a disability) had been accepted in the Nova Scotia nominee program for immigration to Canada. They initially came here as visitors/tourists and were aware that they would have to leave continue their application for immigration from outside the country.

However because of their daughter, they were first told they could not enter the Canada and then told they could only stay for a limited time period. Their British passports were seized and after about 30 days of being in Canada they were ordered to leave and return to the UK—all because their child had a disability. Canada Border Services actually told the family that their daughter had a "lifetime ban" on entering Canada because of her disability.

Is our government seriously applying the excessive demand clause to individuals coming to Canada as visitor?

If visitors to Canada who have a disability can be denied, this brings new meaning to discrimination on the basis of disability. Most visitors carry health insurance and if they require medical services, their health insurance covers the costs.

Although Prime Minister Trudeau promised a nation open to everyone, a welcoming country where “diversity is our strength” and we aspire to build a more “inclusive society”, little to nothing has been done when it came to honouring those commitments with respect to persons with disabilities. Instead, such policies unfairly target persons with disabilities.

Until now, that is.

On March 16, 2021, Canada announced its intention to make a 2018 pilot into permanent policy and relax restrictions on certain foreign nationals with disabilities from becoming permanent residents. The pilot project changed the definition of "excessive demand" to three times the average cost of health and social services to a Canadian and removed some of the calculations for determining ‘excessive demand,’ including several social services for people with disabilities.

Both provinces and territories have indicated they find the change a reasonable balance. Incidentally, it has also saved Immigration Canada considerable time and money as it no longer needs to evaluate these factors, often a highly complex and costly endeavour.

The public has 30 days from the date the proposal was published in the Gazette to offer comments before it is finalized. Individuals who so desire can submit commentary on the proposed regulatory change until April 15 by emailing IRCC.MHBDGO-BDGDGMS.IRCC@cic.gc.ca.

Can We Chat?

2021-01-08T15:10:00.004-04:00

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.

Hoping for Good News [Round Two]

2020-07-20T11:28:00.000-03:00

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]

Lessons Learned: The DTC Appeal Process [Part III]

2020-05-12T18:19:00.000-03:00

As noted in my last post, applying (or re-applying) for the DTC involves having the relevant medical
practitioner provide the required information on the T2201 form. Depending on the extent of the
individual's challenges, you might want to consider having the medical practitioner send along an additional letter or report with the application form.

I. The Appeal Route: Roads Not Taken?
There are three possible methods to challenge an initial denial of he DTC; namely

reapply for the DTC;
request an informal review; and/or
file a Notice of Objection (formal appeal).

Although you can re-apply at any time, unless something has changed (or you now have significant new medical information to provide) with the person's situation, you are probably just as well (or better) off to proceed through the appeal route.

Whether proceeding with an informal review or a Notice of Objection, you will want to highlight
specific information found in the T2201 form and any included correspondence that shows how the effects of the person's impairments on their ability to perform the Activities of Daily Living. Remember, you are now providing information to an individual who has no prior knowledge of the situation and must highlight for him or her the facts that you believe makes the person eligible for the DTC.

You have one year from the date of the denial to request an informal review but only 90 days to pursue the more formal Notice of Objection. If this timing sounds illogical to you, I agree but it is what it is.

Unfortunately, this timing issue can make things a little more complicated. As it could take anywhere from six months to two years to receive a response to your request for an informal review, you might well still be waiting for that response as you approach the one-year time limit to file a formal Notice of Objection. For this reason, you need to document your timelines carefully and make sure you file a Notice of Objection two or three weeks prior to the one-year time limit, even if you haven't yet received a response to your informal review.

II. The So-called Requirement of 'Additional Medical Information"

Whichever route you take, it's important to include any new medical information that you have not already supplied, such as new or updated medical reports, or an additional letter from a medical practitioner who is familiar with the situation. This additional information will clearly focus on how the impairment affects the activities of daily living.

However, it's important to realize that although you can (and should) supply any additional helpful medical information you can, you are most certainly not obligated to do so.

This is extremely important because the CRA appears to have taken the ludicrous (and totally unsupported) position that it CANNOT and WILL NOT review any application unless additional medical information has been provided.

This is exactly what occurred when I requested an informal review of the denial of my youngest daughter's re application for the DTC and it's flatout not true. This position violates not only the
CRA's own Taxpayer Bill of Rights, but also the broader legal principle that when appealing a government decision you have the right to have that decision reviewed by an independent party (someone not involved in the original decision) whether or not you have new information to provide.

Whether a review or appeal, should you receive such a response, know that the CRA is simply up to its old tricks. Unfortunately, too many people don't realize this and once they receive a letter denying their request for a review, they simply move on. Thank goodness I (and now you) know differently. If you receive such a response, simply move on to the next level of appeal and file a Notice of Objection.

III. The Notice of Objection
The procedure for filing a Notice of Objection is set out here, along with information as to the documentation required. Note that there is no mention of a requirement to provide any additional medical information, only the "relevant facts and reasons for your objection" and "copies of all documents that support your objection". This supporting documentation will often be as simple as the T2201 form you originally sent to the CRA (along with any additional material that might have been attached).

It appears that the CRA is effectively requiring the majority of DTC applicants to reach this level before providing any semblance of due process. Unless your case is an obvious slam dunk (as occurred with my daughter and other situations I've recently become aware of), you can expect to receive a phone call from the authorized CRA officer prior to the the final decision being made.

V. The Tax Court of Canada
Should your Notice of Objection be dismissed, you have one final avenue of appeal to the Tax Court of Canada. However, I cannot recommend you take on this level of appeal without legal counsel.

VI. One Final Step: the Service Complaint
You also have the right to lodge a service complaint with the Office of the Taxpayer's Ombudsman. Please don't write this step off as a waste of time.

One of the issues noted in the "2019 First Annual Report of the Disability Advisory Committee: Enabling access to disability tax measures – Report in brief"was that the CRA doesn't
adequately share information about the results of objections or appeals with its employees, which negatively affects the Agency's ability to improve its performance. Assessment decisions that are overturned may signal inconsistencies in assessment or objection processes and sharing such information should reduce the numbers of objections and appeals.

The CRA agreed and has explained that it is committed to ensuring that objection and appeal decisions are shared with all assessing and audit areas.

Let's do our part to give them a little ~~shove~~ push in that direction.

* With a tip of the hat and many thanks to Dan Paladin of Padalin Disability Tax Credit Solutions.