All About Estates

Changes Are Coming to the Ontario Disability Support Program

In July, the Ontario Minister of Children, Community and Social Services (“Minister”) announced that the provincial government was set to spend 100 days developing a plan “to reform social assistance so it helps more people break the cycle of poverty, re-enter the workforce and get back on track.” [1] At that time, the Ontario government also announced it was rolling back changes to ODSP that had been introduced by the former government, which I have blogged about here. The review period has now ended, and the results of the review were made public, by way of a press conference and related press release, on November 22.

The November 22 press release emphasises reforming social assistance in Ontario with a view to enabling recipients to return to work. For example, it says the new plan is about a “more effective, sustainable approach to helping people find and keep jobs”. The Minister of Training, Colleges and Universities, who participated in the press conference, also stated that the reforms were “a first step in restoring dignity, encouraging employment, and empowering the province’s most vulnerable to break free from a cycle of poverty.” With respect to ODSP specifically, the press release states that the priority is to “redesign the Ontario Disability Support Program to provide annualized income support with far fewer reporting requirements for Ontarians with severe disabilities.” [2]

We do not yet have the details of the proposed changes because the implementing legislation has not been introduced. The details are of course important so any commentary at this point is preliminary. What we do know is that two broad changes are proposed for ODSP. First, ODSP recipients would be permitted to earn income of up to $6,000 per year, up from the current $200 per month, with an exemption of 25% for income earned above that threshold. Second, the government proposes to align the ODSP definition of a person with a disability with the federal government.

With respect to the first proposal, while it may benefit ODSP recipients who area able to work and earn up to $6,000, many ODSP recipients are unable to work at all and will not benefit from this change. As noted above, the focus of the government is on re-entry to the workforce. With that focus, there is concern that the government could lose sight of the fact that returning to work is not possible for many people receiving ODSP.

With respect to the second proposal, critics have pointed out that the federal government does not have a single definition of disability that is used for all purposes, and have pointed with concern to the definition used for purposes of the Canada Pension Plan. [3] The CPP provides that a person is considered to be disabled only if the person is determined to have a “severe and prolonged mental or physical disability”. A disability is “severe” only if as a result of the disability the person is incapable of “regularly pursuing any substantial gainful occupation”, and it is “prolonged” only if it is likely to be “long continued and of indefinite duration or is likely to result in death.” [4]

It is noteworthy that “severe”, the language used in the CPP, is also the language used by the Minister at the press conference and in the press release. For example, she states: “Many people in this province have severe disabilities that make it very difficult to support themselves…” [emphasis added]. By contrast, the Ontario Disability Support Program Act, 1997 defines a person with a disability as a person who has: (a) a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more; (b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and (c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified in the prescribed manner [emphasis added]. [5]

Critics argue that “severe” imposes a higher threshold than “substantial” and so it may be harder for individuals to qualify for ODSP under the new definition. That question was asked but not answered at the press conference, although the Minister did confirm existing ODSP recipients would be grandfathered. Of course, the fact that grandfathering is part of the reforms suggests that there will in fact be a different threshold going forward.

Stay tuned for a further update when the details of the proposed changes are released in the form of legislation.

 

[1] Ministry of Children, Community and Social Services, Press Release, Helping People With a Plan to Reform Social Assistance, July 31, 2018.

[2] Ministry of Children, Community and Social Services, Press Release, Reforming Social Assistance, November 22, 2018.

[3] Nick Boisvert and Lisa Xing for CBC News, Ontario PCs to update disability requirements, allow welfare recipients to earn more money, at <https://www.cbc.ca/news/canada/toronto/doug-ford-social-assistance-plan-1.4915315>.

[4] Canada Pension Plan, RSC 1985, c. C-8, s. 42(2).

[5] Ontario Disability Support Program Act, 1997, SO 1997, c. 25, Sched. B, s. 4(1).

About Darren Lund
Darren Lund is a member of the Trust, Wills, Estates and Charities at Fasken, Toronto office. Darren has expertise in a broad range of estate planning matters, including multiple wills, inter vivos trusts, disability planning, estate freezing, and planning for beneficiaries and assets outside Canada. Darren advises trustees and beneficiaries on all aspects of estate administration, both contentious and non-contentious, and his experience includes passing of fiduciary accounts, trust variations, post-mortem tax planning, and administering the Canadian estates of non-residents. He also speaks and writes on a variety of related topics such as estate planning for spouses and couples, inheriting overseas property and estate planning for persons with disabilities. He previously practised estates law at a large national law firm. Email: dlund@fasken.com

1 Comment

  1. Jill Bone

    November 30, 2018 - 5:04 pm
    Reply

    I would also argue that earning $6,000 a year does not meet the description of “substantial gainful occupation”, especially with the rising cost of living across the country. Perhaps the income maximum could be tied to the basic personal amount set by CRA (currently $11,635) – 1/3 or 1/2 of this amount.

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