Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce

Issue 5 - Evidence - February 12, 2014

OTTAWA, Wednesday, February 12, 2014

The Standing Senate Committee on Banking, Trade and Commerce met this day at 4:18 p.m. to study the ability of individuals to establish a Registered Disability Savings Plan (RDSP), with particular emphasis on legal representation and the ability of individuals to enter into a contract.

Senator Céline Hervieux-Payette: (Deputy Chair) in the chair.


The Deputy Chair: I would like to welcome our distinguished guests. Today, the committee is holding its eighth meeting as part of its study on Registered Disability Savings Plans or RDSPs, with particular emphasis on legal representation and the ability of individuals to enter into a contract with a view to taking out a Registered Disability Savings Plan.

The committee began its study in December and heard testimony from the Minister of State for Finance and officials from the Department of Finance, organizations that worked with persons with disabilities, and financial institutions and financial planning institutions.

Today, the committee will hear more about certain legal aspects related to this study. The members of the committee have raised certain questions during previous meetings about, for example, eligibility for a Registered Disability Savings Plan, legal representation and the ability of individuals to enter into a contract, and provincial and territorial legislation concerning the appointment of a legal representative.

We are therefore eager to hear from the law specialists who are with us today and to have the opportunity to ask them questions. You all have opening remarks to deliver, distinguished guests, and I would ask that you introduce yourself when you begin your remarks. After the five presentations, I will turn the floor over to the senators for questions. I now give the floor to our witnesses. Mr. Desmarais, please go ahead.


Sébastien G. Desmarais, Lawyer, Tierney Stauffer LLP, as an individual: Thank you, Madame Chair and honourable members of the Senate. My name is Sébastien Desmarais from the law firm Tierney Stauffer in Ottawa. I specialize in tax and estate matters. I would like to thank you for the opportunity to come here to speak on RDSP accounts. In my view from my practice, the introduction in the 2007 budget of the RDSP was a great initiative from this government. It's undeniable that families and government share a responsibility to assist disabled persons. For the parents, this is especially important when it comes to financial assistance. I think that the vehicle, the RDSP, addresses those concerns; at least it provides a new alternative for those persons who have a disabled child or family member.

I read that about 70,000 RDSP accounts have been opened since 2008. This is an interesting number, but we have to measure it on how many are eligible to open an RDSP account. I have also read that there are about half a million people who would be eligible, so we have to measure its success with who is entitled to open such an account. Mr. Jean Sylvain, who spoke before you a couple of weeks ago, mentioned that the total contribution to RDSPs is, on average, $15,000. We can also ask ourselves why there aren't more accounts open and why there aren't more contributions. Part of the answer is the challenge of establishing an account and the challenges of whether one has the capacity to open an account. I look forward to answering those questions.

Nimali Gamage, Partner, Goddard Gamage Stephens LLP: Thank you for inviting us to speak today about this important and interesting subject matter. My name is Nimali Gamage, and I am a lawyer at Goddard Gamage Stephens in Toronto in my fourteenth year of practice. Most of those years have been in the area specifically of trusts and estates and mental incapacity law. My firm has extensive experience in the area of guardianship, including contested and uncontested guardianship applications, power of attorney litigation, and power of attorney drafting; and I have a specialized subset of experience in the area of the Ontario Disability Support Program benefits, specifically as they relate to preservation of those benefits in the face of receiving an inheritance or in the personal injury context.

Before I go on with my comments about the RDSP, I would like to tell you about a few of my clients, not using their real names, of course, so that you have an idea of the context I work in every day and know where my comments about the RDSP are coming from.

I have the parents of 23-year-old Michael, who was catastrophically brain injured in a motor vehicle accident. He will receive a $2 million personal injury settlement that is supposed to cover his care costs for the rest of his life, but they will be much more than that given his young age and the extent of his injuries. His parents came to see me because they need to apply for guardianship of his property so that they have the authority to assist him in managing his personal injury settlement.

Also, the daughter of an elderly retired physician has come in to retain me to battle her sister who has procured a power of attorney for their father during a time when he was clearly incapable of granting a power of attorney. That sister has cleaned out his bank accounts and transferred his house and cottage properties into her name and has barred the sister, my client, from seeing the dad. It's not family law that I practice but it's very much about families.

Then I have my ODSP cases: 35-year-old Bill suffers from bipolar disorder and personality disorder, which fluctuate from severe to moderately severe. As a result, he cannot maintain gainful employment, and his only source of income is $800 a month of ODSP. He has found out that his grandmother left him an inheritance, not large enough to live off but large enough to disentitle him to his ODSP benefits, the eligibility to which is asset-based. The grandmother did not have the proper type of trust in her will to protect his ODSP eligibility so Bill retained me to see if there is anything we can do to help him receive this inheritance and preserve his ODSP at the same time.

You will notice in all of those cases that I didn't mention the term ``RDSP.'' I don't hold myself out to be an expert on RDSPs or on income tax, so I'm glad Mr. Desmarais referred to his tax practice. However, RDSPs do come up in all of these cases and then some, so my following comments are in this context.

The first issue is the legal representative conundrum. As this committee has heard, if a person is mentally incapable of entering into the RDSP contract with the financial institution, then a legal representative on their behalf can open their RDSP for them. In Ontario, this is problematic because the ways in which someone currently can have a legal representative are three-fold. First, they can appoint a representative under a power of attorney for property. The problem in Ontario is that the threshold for mental capacity to grant a power of attorney for property is very high, and a large percentage of people with developmental and psychiatric disabilities and acquired brain injuries cannot meet this threshold.

Second, under statutory guardianship, the Public Guardian and Trustee, PGT, becomes the representative through the statutory guardianship process. In some cases, a family member then applies to replace the PGT as guardian; but there are problems: First, this requires a finding of incapacity to manage property, which has significant consequences and may not be otherwise warranted; and, second, although the statutory guardianship process set out in the Substitute Decisions Act is supposed to be a less expensive, non-court and streamlined process to obtain a guardian, in my experience it does not always play out this way. It can take several months and much red tape to complete the process or several months to find out you can't complete the process for whatever reason; and you end up having to go the court route.

The third way of having a representative in Ontario is the court-appointed guardianship, where someone applies to the court to be made the person's guardian of property. The first problem, as with statutory guardianship, is that it requires a declaration that someone is incapable of managing property, which in some cases is not necessary or warranted. The second problem with the court-appointed guardianship process in this context we're discussing is that it's expensive and you require a lawyer, and it can take several months to complete the process, sometimes even more.

This leads us to the discussion about the alternative route to a legal representative. Ms. Mason-Case, Ms. Watts and Mr. Dodek, who are on this panel with me today, will be speaking in more detail about the alternate routes. From my perspective and that of my clients, I would like to tell you what the important issues are that need to be addressed when we're talking about the solution, whatever that's going to be.

What have I learned or heard from my guardianship clients, power of attorney clients, and the ODSP clients? The concern regarding financial abuse by the legal representative is significant. I see the best- and the worst-case scenarios. The parents of brain-injured Michael, whom I told you about earlier, are doing everything for their son in his best interests and would never dream of taking advantage of the power given to them by way of guardianship. They can't believe that all of their actions from now on will be looked at under a microscope and that they will be held accountable. They will have to pass their accounts every two years in court and prove they have not dipped into Michael's money for themselves, which to them is preposterous and for some parents an offensive suggestion.

On the flip side, I unfortunately see the very worst of society as well — the people who use the trusted position they have procured or been granted to take advantage of their vulnerable family members for their own profit. People are often in disbelief when I tell them about the types of cases that I see, because we all want to believe that people can't possibly be that evil. But, sadly, some of them are. And given that, over the next decades, our society will be experiencing the largest ever transfer of wealth from one generation to the next, the possibility for financial abuse is even greater.

If there is going to be a simplified route to legal representation for the purposes of opening an RDSP, there are some concerns to consider. Who will be vetting the form or application — the court, government, a private agency, the financial institution? Will a lawyer be required to assist with the formal application process and, if so, who is instructing the lawyer — the disabled individual or the proposed legal representative? If the disabled person is not mentally capable of selecting the representative, who will be doing this; will they be self-appointed or appointed by the body vetting the application?

Will the legal representative be able to do more than just open the RDSP; will they be able to manage the account and make decisions about withdrawals from it? Will they be able to manage the money withdrawn from it and, if so, what will the framework for this be and how will the accountability and safeguards be implemented and enforced?

I've also learned from my clients that if a person is educated from the very beginning about what the role and duties are of a legal representative — what the boundaries are, how they will be held accountable, how to go about the everyday management of the incapable person's property, how to keep accurate and detailed records — then the chances of them abusing their power is significantly lowered.

Often in the cases where I am hired to fight the rogue sibling or the rogue substitute decision-maker — like in the case of the two daughters of the physician — the rogue substitute decision-maker did not get this type of advice when they procured the power of attorney document in the first place.

When we speak about one of the possible solutions to the legal representation problem being a simplified power of attorney with a lower threshold of mental capacity required to grant it, some individuals with disabilities are completely nonverbal or have such limited capacity that they would not be able to meet this low threshold of capacity.

Another concern I have heard numerous times from clients who want to set up an RDSP to protect their ODSP entitlement is they do not have a trusted person they can appoint under a power of attorney to act as their legal representative, or there is no one who will step forward to act as their guardian. Many of these clients have been estranged from their families or are completely isolated from society, often as a result of their disability. So finding someone to act as their legal representative is often the deal-breaker when it comes to setting up an RDSP. The amount of money they are dealing with is not enough to warrant the expense of using a trust company as a legal representative; they do not want the PGT to be involved in their affairs; and there is no trustworthy private individual or company that exists that will take these types of appointments.

Then there is the issue of balancing the accessibility to the RDSP with those accountability issues.

Who of my clients are accessing or wanting to access the RDSP? One type of client is an individual who will be receiving an inheritance or life insurance proceeds from a deceased person and wants to protect their financial eligibility for ODSP in the face of receiving those funds.

In Ontario, a person can receive an inheritance or life insurance proceeds and still remain financially eligible for ODSP benefits if the inheritance or life insurance is either put into a proper type of trust in the deceased person's will — and this is informally called a Henson Trust — and if it's not put in a Henson Trust by the deceased person, the ODSP benefits recipient can preserve their ODSP eligibility by structuring the inheritance or life insurance proceeds appropriately. One of the things they can do is put this money in an RDSP, which is one of the assets in an enumerated list of exempt assets in the ODSP regulations.

Other clients who want to access the RDSP are clients who will be receiving a personal injury settlement. They come to me not because I do personal injury law but because they either need a guardian appointed to manage the personal injury funds; they want to set up a trust to put the settlement proceeds in; or they want my help in preserving their ODSP in the face of receiving the settlement. In some of these cases, the guardian or the person wants to establish an RDSP.

In all of these cases, it is important that my client face no barriers to accessing the RDSP, and I am keen for Ontario and all the provinces to find a streamlined, inexpensive, accessible process for legal representation in the context of RDSPs. However, it is equally important that if there is going to be a legal representative opening and perhaps even managing the RDSP for the person, said legal representative must be held accountable for every dollar of funds that he or she has access to, and there must be safeguards in place to prevent, detect and remedy financial abuse.

In fact, I would submit that the easier we're going to make it for someone to act as someone's legal representative, the more stringent we need to be with the safeguards. Yes, the court appointed guardianship process is expensive and time consuming, but that is because there are accountability and protective measures built in at the front end of the process. So if we're going to take away those front-end measures, we have to put them back in someplace else.

Then there is the issue of the low percentage of people with disabilities with RDSPs. As Sébastien mentioned, in reading the transcripts of the past sessions of this committee, the question has come up more than once regarding why such a low number of Canadians with disabilities are opening RDSPs. In my experience, these are my clients with disabilities who do not have RDSPs. They are the ones who don't have the mental capacity to establish the RDSP; who don't want or need to have a guardian of property appointed, with the corresponding deprivation of autonomy and rights that comes with that regime; or they have no one trusted who can act as their legal representative.

Then there are those of my clients who do have mental capacity to establish an RDSP but don't have a single extra dollar to put into savings because the costs of their disability have impoverished them and their families.

Then there are those whose disability fluctuates in terms of severity, causing their eligibility for the Disability Tax Credit to also fluctuate. This is incredibly problematic for some of my clients — those who establish an RDSP as part of a plan to preserve their ODSP benefits, because the medical threshold to qualify for ODSP is lower than the threshold to qualify for the Disability Tax Credit. So a person can still receive their ODSP even if their disability fluctuates to the extent that they lose their DTC status; however, when they lose their DTC status, they have to collapse their RDSP, which then causes them to lose their ODSP.

I'm sorry for all the initialisms, but if you follow me, the only way they preserve their ODSP is by putting their savings into an RDSP, and now they have lost their Disability Tax Credit status, so they have to collapse their RDSP. Then they lose their ODSP.

So there needs to be some flexibility for these individuals, or at least a grace period wherein the severity of their disability can fluctuate for a certain period of time before they lose their DTC status.

Lastly, there are those of my clients who receive a personal injury settlement greater than $100,000 or for any amount on account of economic loss. This is a very specific area of ODSP rules that I will not delve into here. But the point is that personal injury proceedings are treated as a distinct heading under the ODSP asset rules. A person who gets a personal injury settlement can only preserve their ODSP entitlement in very specific circumstances. To date, the ODSP regulations have not been updated to address RDSPs as an option for these individuals, so they cannot access the RDSP.

Thank you very much for this opportunity to speak to you today, and I welcome any questions that you have.

The Deputy Chair: I think that was very clear; thank you for giving us the overview of all the problems encountered by your clients. Since time is passing, can I ask Ms. Watts to proceed with the additional remarks?

Laura Tamblyn Watts, Senior Fellow, Canadian Centre for Elder Law, British Columbia Law Institute: Thank you for inviting me here today. I'm a Senior Fellow at the Canadian Centre for Elder Law and also at the B.C. Law Institute, which is the law reform body of British Columbia.

I am going to break my comments into three sections. First, I will give a brief background and introduction to the issue. Second, I've been asked to focus my discussions a little bit on the B.C. model of the Representation Agreement Act, which I understand from a review of the transcripts has been an area of some interest to this committee. Finally, I will close with some comments about constitutionality and the recommendations that I have.

The B.C. Law Institute is the law reform body of British Columbia. It is a charitable non-profit organization and has been providing law reform for more than 20 years. It is the successor to the British Columbia Law Reform Commission. It is non-partisan and apolitical.

The Canadian Centre for Elder Law was established in 2003 as a non-profit, non-political research wing, looking at law and aging issues. It is from that perspective that I'll speak across the country. It is from the perspective of the B.C. Law Institute that I will limit my comments to the B.C. Law Reform Commission's review of the representation agreement.

The committee has expressed interest in learning a bit more about the B.C. model of the Representation Agreement Act, and I have been invited to explore the history of how the act works and how it works with, or doesn't work with, the RDSPs. So I'll move my comments into that section right now.

This subject focuses on the notion of supportive decision making, which I know the committee has been wrestling with and trying to understand in the way that we have all been wrestling with it and trying to understand it. The issue, of course, is very clear — if you don't have the ability to contract, you may not be able to access an RDSP.

The British Columbia solution was to create something called a representation agreement, which has, if you are using the colloquial term, a low level of capacity. I prefer to think of it as different tests of capacity. It doesn't require the ability to contract but rather requires that you have one of a variety of types of abilities that would allow you to engage in this very functional type of supported or substitute decision making, which, if you will, is lower than the obligations that you have to have for capacity to make a power of attorney. It's a more functional document in this regard.

You may make a representation agreement even though the adult may not be able to make a contract, may not be able to manage their own health care, personal care, or legal matters and may not even be able to manage routine financial matters. Capacity is determined by taking in a broad range of factors. Unlike many jurisdictions, where we look at the ability to understand and appreciate that model that we use in so many jurisdictions and in our common law, British Columbia has changed the test. It has indicated a very specific set of enumerated considerations that can be taken into consideration. A person with a lower, if you will — and I don't like that term — level of capacity may enter into a representation agreement even if they've communicated the desire to have a supported decision maker, and communication can be made in a wide variety of fashions.

It can be indicated by a desire, that is, a demonstrated choice or preference or expressed approval or disapproval. Again, it can be indicated in a wide variety of fashions. They need to show that they understand that a representation agreement will affect them, but clarity in the understanding and appreciation of how it will affect them is not required, just that it will affect them.

Perhaps most importantly, they have a relationship with the proposed supportive decision maker that's characterized by trust. It's that notion of trust that I think informs our conversations around RDSPs.

With that in mind, I wanted to share with the committee a research project that has just been concluded. The Canadian Centre for Elder Law engaged in quantitative analysis through experts and persons with disabilities who are experiential experts of how supportive decision making was really working on the ground. As the committee is wrestling with whether supportive decision making is a functional structure that works well for RDSPs, I can provide new research information released to you today.

We found as follows: Supportive decision making pursuant to representation agreements is very nice in theory and it provides an important opportunity and resource to a limited group of people. That may be enough. The agreements have had uptake in a very limited fashion, and they have not been widely embraced in the ways that powers of attorney have, in terms of the personal care that you'd see in Ontario, for instance. Indeed, the development of the representation agreement was a contentious one. It was, I would argue, at the forefront of the thinking on how we should create substituted or supportive decision making legal documents in the country and, as a result, I think it took a bit of the brunt as a groundbeaker.

This was fraught with hard feelings as the legal community and the disability community wrestled with how to marry the theory of having this very accessible type of tool with the very real concerns of counsel about the potential for abuse. As a result, it took a very long time for the uptake of representation agreements to be included in British Columbia, and then they have only been more embraced after a revision of that act pursuant to the MacLean report, which tightened up some of the language.

Representation agreements and supportive decision making have been important opportunities for people with cognitive impairment and other intellectual disabilities to make good choices, but we have not seen the uptake that we thought that we would have. It is important to note that, while it may be that the experience of using representation agreements at financial institutions will sometimes unlock the door to setting up an RDSP, it is not actually one of the enumerated things that is listed very clearly that a representation agreement will allow. Let me be clear on this. There is a very specific list in the regulation of financial routine management, and it does include the things that you would expect: RRSPs, RIFFs, paying bills and so forth. It is an exhaustive list.

The Representation Agreement Act, however, predates the introduction of the RDSP. The RDSP is not on that list. In our consultations with financial institutions, lawyers, public guardian trustees, the Council of Canadians with Disabilities, Inclusion B.C, PLAN, et cetera, we asked, ``Are people doing this anyway? Are people using representation agreements to open RDSPs?'' We had very mixed responses.

I would offer that it has not been a clear panacea. It is not clearly listed. Where there has been a relationship of trust between the financial institution, the person and their supporter, there has been the ability to unlock or manoeuvre around the fact that it is not an enumerated ground of ability. Where there has not been that comfort, financial institutions have said, ``It's not on the list, and we can't do it.''

I would like to move to the third section where I provide some recommendations.

I sit, as well, on the Uniform Law Conference of Canada and on the Federation of Law Reform Agencies of Canada, as do my colleagues. It is within this experience that we have wrestled with harmonized and unified law in this general area of substituted and supported decision making. I was able to participate in a project looking at harmonizing the laws of Western Canada around powers of attorney. It is inherently very difficult and goes against the expectations of ordinary Canadians. They would expect that you would have the same ability to open an RDSP, to transfer land or to make a medical or personal decision in Quebec, Nova Scotia, the Yukon, British Columbia, or any part of Canada. That is the expectation. It is not, however, the reality. We have a quilting of difficult understandings. I've had the ability to refer to the legal opinion of Professor Peter Hogg, and I have had the opportunity to review the submissions of PLAN and of Professor Pooran. The Canadian Centre for Elder Law is strongly in support of the RDSP. We offer to you that the experience of the Representation Agreement Act is excellent in theory, but there are some challenges and some concerns around its uptake.

I would offer that the Canadian Centre for Elder Law would strongly suggest that the committee consider a national option that the constitutional argument that Professor Hogg advances for a very narrow intrusion may be very appropriate in the circumstance and avoid the many pitfalls of having individual systems that provide, I believe, inequity to the very people who we are trying to support.

Adam Dodek, Member, Board of Governors, Law Commission of Ontario: Good afternoon, it is my pleasure as a member of the Board of Governors to represent the Law Commission of Ontario today along with my colleague, Sarah Mason-Case, who is a research lawyer at the Law Commission. I will make brief remarks about the Law Commission of Ontario and the genesis of this project and then turn the floor over to Ms. Mason-Case for substantive remarks.

The Law Commission of Ontario is an independent, non-partisan body that was launched in September 2007. It is a partnership between the Law Foundation of Ontario, York University, Osgoode Hall Law School, the Ontario Ministry of the Attorney General, the Law Society of Upper Canada and the Ontario Law Deans. We undertake projects in a range of legal areas and in technical aspects of the law as well as broader social justice issues.

In May 2012, the Government of Ontario asked us to explore and make recommendations about a simplified process for adults with mental health challenges and particular developmental disabilities to open RDSPs themselves. They came to us because work on this project is benefiting from two completed commissioned projects creating frameworks for the law as it affects persons with disabilities and older adults and our current project on capacity, guardianship and decision-making.

It's now my pleasure to ask Ms. Mason-Case to speak about the specifics of our work on this project.

Sarah Mason-Case, Research Lawyer, Law Commission of Ontario: I would like to thank the Senate Committee for inviting the Law Commission to provide you with information about our project called Capacity of Adults with Mental Disabilities and the Federal RDSP. I would like to take a few minutes to provide you with background on the Law Commission's project, including the purpose and the project stages; and I will also briefly summarize the contents of our recently released discussion paper.

As Professor Dodek mentioned, the Law Commission has an ongoing multi-year project on issues of legal capacity, decision-making and guardianship. That project comprehensively reviews Ontario's legal framework for issues of capacity and legal representation. Acknowledging that work, the Government of Ontario requested that we undertake a review of how adults with mental disabilities might be better able to participate in the RDSP. Our RDSP project is benefiting from the larger project, although we've defined the scope of this project narrowly to fit the context of the RDSP, and that is being delivered separately on a priority timeline.

The purpose of the Law Commission's project on the RDSP is to consider the creation of a process to establish a legal representative for RDSP beneficiaries in Ontario. Under the Income Tax Act, parents can open an RDSP and determine plan terms for a child. Beneficiaries who have reached the age of majority may also do so for themselves. However, where an adult is considered to be incapable of entering into a disability savings plan with a financial institution that offers the RDSP, what is called a ``qualifying person'' under the Income Tax Act must do so on his or her behalf. A financial institution might challenge an adult's capacity, or an adult or another person, such as a family member, may wish to appoint a legal representative. A ``qualifying person'' can be a guardian or a person who is ``legally authorized to act on behalf of the beneficiary.'' In Ontario, qualifying persons include substitute decision- makers, such as guardians and attorneys for property, who can be appointed under the Substitute Decisions Act, 1992.

In December 2013, the Law Commission publicly released a discussion paper that reviews the Substitute Decisions Act, 1992, in light of concerns that self-advocates, their families and other interested parties voiced to the federal government. In seeking to address those concerns, we have analyzed a range of alternative laws, policies and programs available in Ontario and other jurisdictions. We have also presented several options for reform to the Province of Ontario, which we would be pleased to summarize for the Senate Committee.

The release of the discussion paper was an important step in our project process. We initiated the project in May 2013. The following month, we began extensive preliminary consultations and internal research. We conducted interviews with approximately 40 individuals and groups. In June 2013, we formed an advisory group with representatives of many of the interested communities. The advisory group has since provided us with essential input into the project scope and drafting of the discussion paper. We will continue to act as a source of review and advice throughout the remainder of the project.

With the release of the discussion paper in December, the Law Commission launched a phase for broad-based public consultations that will continue until the end of February 2014. We have invited members of the public to provide us with written submissions, and we are proactively soliciting feedback from several key communities through focus groups we are holding across Ontario and as well as from individual interviews. The results of our public consultations and ongoing research will be taken into account in formulating recommendations in a final report, which we anticipate will be delivered to the Ministry of the Attorney General in June 2014.

I'd like to briefly summarize the Law Commission's discussion paper for the Senate committee. The discussion paper focuses on key issues that were identified repeatedly in our preliminary research and consultations. The first key issue, the overall process to designate a legal representative for RDSP beneficiaries, is the core issue for the project. The other key issues consider aspects of any such arrangement that merit in-depth analysis. Ms. Gamage raised some of these key issues. They address: first, the respective roles of the adult, legal representative and third parties; second, whether community organizations should be permitted to act as legal representatives; and third, safeguards against financial abuse.

As mentioned previously, we reviewed and analyzed laws in Ontario and other jurisdictions that provide insights into the development of an alternative process in Ontario. We consider laws in the areas of decision-making, such as the Substitute Decisions Act; trusts; and the income and supports and social benefits sectors, where means to appoint a person to receive income support payments is embedded in the program.

The options for reform presented in the discussion paper draw on elements contained in these existing arrangements and as well take into account evaluative criteria called ``benchmarks for reform'' that we believe a streamlined process in Ontario must meet to be effective. In total, we have presented nine options for reform to establish a legal representative. Several of the options are personal appointment processes that an adult could use to designate someone him or herself.

As you have just heard from Ms. Gamage, some adults with mental disabilities could face challenges in meeting the threshold for capacity to appoint an attorney for property in Ontario. As a result, each of the personal appointments that we've considered as options is premised on a different definition of ``capacity.'' For instance, we look at definitions that have less detailed criteria than those listed in Ontario's legislation. We also look at standards that are based on factors such as the expression of wishes and preferences and the existence of a trusting relationship with an adult's representative.

In addition to personal appointment processes, we have asked whether an external appointment process could be made through a streamlined application to a court, tribunal or government office. An external appointment process could be initiated by an adult or another person such as a family member. We recognize that any external appointment process must be fair, affordable and user-friendly to address the barriers that we've heard about.

I would like to emphasize for the Senate committee that at this juncture the Law Commission has not yet formulated recommendations on a preferred process to establish a legal representative. However, we expect that at the conclusion of our consultation phase, we will be in a better position to examine which options may be implementable in the Ontario context, while also being flexible enough to meet the needs of RDSP beneficiaries and those who support them.


The Deputy Chair: Thank you all for your presentations. This took 45 minutes; we now have just over an hour remaining.


Senator Black: I thank each of you; that was an absolutely tremendous presentation, not that it solved the problem quite yet, but hopefully with the indulgence of the chair, we'll get somewhere on that.

I'd also like the record to show that the clerk and her officials should be commended for bringing such an outstanding panel together, because I think this was the piece we were missing to date.

Ms. Tamblyn Watts, I'm interested in your suggestion that there might be a federal solution here. Indeed, your recommendation would be that if one could be found, it avoids the ``quilting nature'' — as I believe you called it — of this particular problem. I am not aware of Professor Hogg's opinion; I presume I should be aware of it, but I'm not. Are you and the other panelists of the view that the constitutional authority exists with the Government of Canada to effect a national solution?

Ms. Watts: I have the privilege of being part of the Canadian Centre for Elder Law and, as a result, I am allowed to look more broadly. It is within that purview that I respond to you today.

While I by no means claim expertise, necessarily, in constitutional law, I have had the privilege of reviewing the opinions. Working in a harmonized fashion across the very different regimes in the country around substituted and supporting — and now also co-decision-making and assisted decision-making — is baffling to the best of us. It is my respectful view that the narrow inclusion that it would take for the federal government would be supported by constitutional arguments. Professor Hogg's reasoning that brought to bear the cases of impugned provisions being ordinarily reserved for provincial or territorial action would be supported by the case of Multiple Access Ltd. v. McCutcheon. That was built upon by General Motors of Canada Ltd. v. City National Leasing and a variety of other cases up to 2005.

The bulk of the argument is this: Where there is a national reason in order to implement a regime that might ordinarily be within the section 92 reserve of provincial and territorial rights, the federal government may do so if it's in the public interest and the inclusion is very narrow and for a specific purpose.

If the question was, ``Should all issues of capacity be evolved up to the federal government?'', I would give you a very different opinion. If it's the question of having a federal benefit that is analogous to other federal benefits like RSPs, RESPs, RIFs and so forth — if it's a matter of supporting a national equality standard — then it is warranted to have a national solution in this narrow field.

Senator Black: Would any of you like to comment on that?

Ms. Gamage: I can comment from the perspective of my clients, so it is not the constitutional argument but the practical view from my clients and what they are experiencing. They are increasingly mobile, even though a lot of my clients are aging and are not themselves actually increasingly mobile. Canadians as a group and their family members are increasingly mobile. So you have children of elderly people strewn across the country, and you have all these different regimes for substitute decision-making.

Although I have a practice focused in substitute decision-making law, not even I know all of the regimes outside of Ontario. I know something about them, but I cannot provide legal advice to my Ontario client's sibling in Alberta regarding what they should do for their mom who is in Newfoundland.

So it is quite a patchwork quilt. From my clients' perspective, I could see the benefit of a national solution to this specific problem.

Mr. Desmarais: Without opening the Pandora's Box of constitutional law, RDSPs are part of the Income Tax Act. It is part the Disability Tax Credit, and that might be a way where we can — and I'm using the term loosely — ``circumvent'' each jurisdiction in terms of capacity and we could, possibly, elaborate some type of test or definition of capacity for the purpose of an RDSP account within the Income Tax Act.

That way, we are not crossing jurisdictional issues; we are narrowing it down to a federal Income Tax Act. I give guidance to clients of mine who want to provide financial security through the RDSP but who don't know where to go. That might be a solution break.

Mr. Dodek: It's important for the Law Commission of Ontario to clarify — the issue of the constitutionality would not be within the scope of this project for us. We are limited to our mandate within Ontario and the law of Ontario, and we were asked by the Government of Ontario, assuming that they do have the constitutional jurisdiction to make the best recommendations for the best program in this area.

Senator Black: Presuming that we can deal with the constitutional issues — and that was a very intelligent suggestion; very good comments — the problem becomes finding the correct vehicle to balance, as you have accurately pointed out, the challenges of access vis-à-vis the potential of abuse.

So, Ontario, you're the centre of Canada. You've got nine options, and I know you have not yet disclosed which you prefer, but what vehicle would work best, do you think? Ignore the cameras; ignore the microphones.

Ms. Mason-Case: Unfortunately, I don't think we can ignore the cameras and the microphones. And it's not just a question of the cameras and microphones but one of making a premature determination.

Senator Black: I respect that.

Ms. Mason-Case: We are in the course of our consultation phase right now. We will be consulting with nine different focus groups, five of which will be with adults with mental disabilities and their families, so we'd like to hear from them about what they would like in a future process.

We are also consulting with financial institutions to hear their opinions, particularly on issues of liability and reliance on a legal representative, as well as the provincial government and community and advocacy organizations. So it really would be theorizing to choose a best option at this point.

Senator Black: I tried.

Is June 14 when your work will be out?

Ms. Mason-Case: Yes.


The Deputy Chair: I want to make sure that we understand each other. Last week, we heard from a blind person as a witness. Blind people are not necessarily people with mental disabilities.

Today, it seems to me as though we are dealing solely with people who are mentally incapacitated. We have to remember that this program exists for people whose abilities are more or less specified in the legislation, but if you have other comments concerning other types of disabilities, I would urge you to make those comments.

If we say that there are 500,000, a certain proportion of that will be persons with mental disabilities and a certain proportion of that will be persons with physical disabilities.

I just want to clarify this issue because we are talking about a smaller sub-set of the disabled group.


Senator Campbell: I echo the comments of Senator Black that this has been, at least from my point of view, very useful. We're finally getting down to the nitty-gritty. Unfortunately, to get down to that, we will all have to get the wisdom of Solomon here, because it seems like we're dividing everything up.

Can you tell me if this is a fair statement: For the most part, the ones who are taking advantage of this benefit have supportive family surrounding them, or they have a support system that's built in and that they can trust?

I'm asking: In your experience, would you say the majority of the people who are taking advantage of this program have this support group?

Ms. Tamblyn Watts: Thank you senator. In our research projects, which we quite recently completed, we were able to ask some of these questions. I want to qualify that, as a researcher, by saying that I didn't have an opportunity to speak with everyone who was in the field, but I certainly spoke with key informants and so forth. It is the case, predominantly where people have strong circles of support, that RDSPs are taken up, and, within that cohort, typically it's middle income folks who are trying to take advantage. So there are challenges around aging in terms of looking at the life course. When do we get people into RDSPs, and are ages appropriate? Older persons who may have cognitive impairments due to a genetic predisposition may have much shorter life expectancies and may age at a much greater rate. For instance, a person with Down's Syndrome, at about the age of 50, will have the genetic age of someone who is 83 and, at the age of 40, is more likely to have the onset of dementia.

So part of what we're looking at is uptake within circles of support — that is the experience of the Canadian Centre for Elder Law and the B.C. Law Institute — but also within only portions of the life course, not across the life course in the fulsome fashion that you might expect.

Senator Campbell: What I'm trying to get to is how we help the people who don't have that support or the people who are so disabled that they simply aren't capable. It seems like there are a lot of roadblocks in front of this. It would seem to me that somebody should be recognizing that they simply don't have the capacity. It's not their fault; that's the way it is. Then we seem to start putting up all of these roadblocks instead of saying, ``Okay, they clearly don't have the capacity. Someday this person will be 50 years old. I'm their dad, and I'm going to be dead. How do I go forward on this?'' There are all of these roadblocks in front of this, instead of saying, ``Yes, they're incapacitated. You're the father and the mother; go forth and set this up.'' How do we get to that? I don't know. It's all about constitutionality. How about the people that we're trying to help at the end of the day? It would seem to me that the federal government can do this. It is capable of doing it, but how do we move forward on it?

Ms. Tamblyn Watts: There is one suggestion that has perhaps been circulated through this committee and has certainly been circulated in previous reviews of RDSPs and that's having an automatic setup. When you trigger some other aspects of disability benefits, there is an automatic setup of an RDSP and that government money goes directly into it. If a person can then add to it then that's fine, and it may be over a course of a lifetime interest as that person is able to put or not put in. Because the federal government is in a position to open this up on an automatic basis and put funds in, if you're looking for a direct approach, there is a vehicle to do that.

Ms. Gamage: I think the other key aspect is the education component because, if you're talking about someone who doesn't have the support network, it's usually the people in the support network that find out about the RDSPs and bring this to the disabled family member. It is in rarer circumstances that it is the disabled individual themselves. When we're talking about — and I appreciate the chair's comment on this — individuals with developmental or psychiatric disabilities, it is more rarely the case that they happen to be meeting with their financial adviser, and their financial adviser says, ``Have you heard about this RDSP?'' So how are these individuals, if they don't have the support networks, going to find out about this? When we talk about the solutions, I'm also not in a position to give an opinion as to, of the nine options that we've been talking about, what I think the best one is.

In that solution, one of the things that would certainly be beneficial is some kind of body, some kind of agency that is responsible for assisting, supporting those who have no support, disseminating information and educating not just the individuals with disabilities but also whoever is going to be the legal representative, to give that education component of it, which would also then help with the prevention of abuse, as I was speaking about earlier.


Senator Bellemare: I would like to ask a supplementary question. I would have liked to have more details on the hypothesis that you have just put forward, namely, that the federal government should have a type of pro forma. I am a new member of this committee, so I am a little bit out of place and perhaps I do not have all the information I need to understand. But you said something interesting and I would like to find out a little bit more about the tangible aspect of your idea.

Ms. Tamblyn Watts: Thank you for the question.


There is an opportunity, within the federal system, to think creatively around opening up accounts by attaching opening an RDSP account to getting other disability benefits, without losing disability benefits, to the degree of trying to obviate the problem that my colleague has mentioned where you get one and have to lose the other based on disability. I'll qualify that my expertise is not in income security and intricate benefits, though I welcome the opportunity to study that. My belief is that the Australian model might be of some interest here, as would some models that exist in New Zealand. They can exist particularly within the disability framework but also more broadly in terms of other automatic accounts that get opened up. If it is the goal of the federal government to provide what I offer is a very generous and very useful benefit to people who need the money, which can also provide independence, personhood and dignity across their life course, then there are many mechanisms in which a person with a disability — a mental disability, a cognitive impairment disability, an intellectual, psychosocial disability — is looking to achieve some form of benefits registration. We do have infrastructure in that regard. I would welcome the opportunity to consider further and report back to this committee around how to integrate that option.


Senator Bellemare: You are talking about a universal program for persons with disabilities that could be integrated into existing aid programs at the provincial level. We would have a universal system, an account, to which the parents could contribute, if I understand correctly. There would be a universal allowance from the federal government in an account. The details would come later, but this is the idea that you are talking about. I find it very interesting.

Ms. Tamblyn Watts: Yes, that is right.


Senator Black: Thank you very much for that offer to provide some further thoughts to us. I was also going to ask — and you alluded to this as well — whether there were other jurisdictions that have tackled this problem. That could be very useful as well if you don't mind giving us some thoughts around what other jurisdictions have done to solve this type of problem on a national basis.

Ms. Tamblyn Watts: I would be delighted to, senator; thank you for that recommendation.

In particular, I would like to draw attention — and I can do this as well in supplemental information — to the wonderful work of the Mental Disability Advocacy Centre, MDAC, which has EU status and runs out of Hungary. They've been internationally engaged in finding strategies for advocacy and support. I can follow up with the committee with information about those models in Europe as well.

Senator Black: That would be tremendous; thank you very much.

Senator Ringuette: I want to reiterate what my colleagues have said. It is a very impressive panel that has brought us to the crux of the issue.

You can automatically set up an account, but awarding guardianship and responsibility for that account is another issue. How would you see achieving nationally the automatic set up of an account? I don't see that being a major problem, per se, but it's different for the guardianship or responsibility of managing the account. At the end of the day, that is the issue. How could we have a national policy attached to the program that would both set up an account and designate guardianship?

Ms. Tamblyn Watts: The wonderful aspect of our division of power is that the federal government can regulate what it regulates with some small, narrow incursions where it's appropriate to do so. I believe it would be up to the provinces and territories to decide how to do that. It would allow the existing provincial or territorial laws to move in an appropriate way. I commend the model that British Columbia has set up in terms of its most accessible nature by its list of ``trusting person,'' and so forth, and its notions of ``functional capacity.'' But it is not my place to tell each of the provinces or territories how they should regulate their laws of guardianship, substitute decision-making, supportive decision-making, assisted decision-making and co-decision making.

I would offer that if the accounts were set up pursuant to the federal policies and regulations, it could be fruitfully turned to the provinces to apply their laws to ensure that it's being done appropriately in each jurisdiction. I would commend the British Columbia model as one that's perhaps the most accessible in the country.

Senator Ringuette: Still, you talked about the B.C. model and said that it's nice in theory but limited in respect of the group of people that it services, and that there is a low uptake.

Certainly, I can understand automatically setting up these accounts. It would take care of an entire slate of clients under government organization supervision and so forth who are unaware of the program. However, it doesn't deal with the issue of guardianship. When we talk about the issue of guardianship, we go back to the provincial legislation, which is all over the place. You mentioned the Australian and New Zealand models. Do they have an acceptable guardianship policy that we could look into? Maybe I'm asking too much, but what would be the take-up for similar accounts in Australia or New Zealand? Today, Madam Chair, we've opened up an entirely new slate of questions. Certainly, we want this program to work for all citizens who could benefit from it, not only a select few.

Ms. Tamblyn Watts: I will try to address it in three points, if I may.

I'm going to talk a little about education and outreach and why there has been limited uptake around some of the B.C. models on supported and substitute decision-making. I will then turn to the constitutional question as solution No. 1 and I'll turn to leave-it-to-the-provinces-and-territories as solution No. 2, if I may.

I could do nothing all day long in my professional and personal careers but talk about substitute decision-making and consent, and it would not yet be adequate. There is a thirst for knowledge in this field which, I would offer with respect, has not begun to be addressed. As my colleagues have mentioned, there is even more interest in understanding that in the smaller circle of folks who are trying to do RDSPs and try to bring together the knowledge of consent and supportive decision-making or substitute decision-making; and the knowledge of benefits associated with it is very complex, as Senator Campbell so rightly pointed out. I would offer that where there have been efforts to engage with communities, professionals and government on a fulsome level, education has been on the rise and uptake has generally been on the rise.

Where there has been a drop in actively engaged education, people don't know enough about it. We've seen this through some of our work in British Columbia when new legislation has come out and there has been a push. My colleagues in Ontario, when the Substitute Decisions Act came out, had a strong push for education, and we saw a great uptake of information and education. Most recently we saw this with the revision of the Alberta legislation as well.

In each of our expert interviews, they said that when the money dried up or there wasn't a body pushing this knowledge and engaging communities, it didn't get out there. I can't emphasize enough how important information about decision-making, consent and capacity is; and we have the tools to do it. It's a matter of will and money. It's not that we don't know how, it's to get the assets. People are eager to take this up in our communities across the country.

I would offer in the narrow context of the representation agreement — the supportive decision-making piece — that the representation agreement allows for one of two types of decision-making. One allows you to have only supportive decision-making where I remain the decision-maker and I simply have someone help me, but the autonomy to make the decision remains my own; or you can have one where I appoint somebody else, a more conventional model. As well, we can have both kinds and for folks with fluctuating types of capacities that works very well.

It's a new idea that has not had enough information, education or training on how to do it. I would offer that I believe it will be a model of the future, particularly since it's so enormously espoused by Article 12 of the UN Convention on the Rights of Persons with Disabilities. Canada being a signatory and ratifier of that convention is wrestling with how to modernize its laws. My colleagues at the Law Commission of Ontario are doing wonderful work looking at different models of decision-making. The answer is that we know how to do the education and the outreach. Some issues are new. If we had enough robust engagement on it, lots of people would take that up.

I will turn to the second or constitutional answer. The question is: If you set up automatic accounts at the federal level, how do you deal with the ``who helps'' piece? That's the functional question of it. I would offer that one of the possibilities is to draft, as my colleagues mentioned, a narrow and specific type of helper, supporter or monitor. There are all kinds of different models we can use that would be used for the sole purpose of the RDSP account. We have other types of examples that my colleagues in the Law Commission of Ontario have very helpfully and usefully laid out in the Ontario context. It can be done and drafted. You can have a specific type for the RDSP.

Turning to the second option, which is the ``leave it to the provinces model,'' with great respect, that's the problem of the provinces. We wrestle with it because we want a holistic solution. I would offer that the provinces are differentially engaged in this question, but as the first notion of education and outreach is pushed, more and folks are more engaged and have more information, the cry will be to come up with fruitful solutions to allow it to happen. It's beyond the engagement of this committee to do so; we can only hope to work fruitfully with our counterparts in the FPTs to do that. It is a challenge, senator. But that is another solution.

Senator Ringuette: I know that we are asking a lot of you, but could you provide us with language that could be used as a policy, part of the RDSP program and the set-up? With the set-up, I don't see any problems; I think that the provinces should be able to, within the Privacy Act, provide names. Then you would have all the people who are already recognized by the Income Tax Act for disability; you already have the bulk of people. If we could have a suggestion of the wording for the framework and for the kind of ``guardianship,'' if we can use that word in that context, that would be helpful.

Ms. Tamblyn Watts: Senator, I'll offer that the Federation of Law Reform Agencies of Canada is having its annual meeting very shortly. If it pleases the committee, I can bring this forward on the agenda for that meeting for their thoughts and consideration. I believe that will be next week.


The Deputy Chair: That is an excellent idea and I am sure that you will report back on your meeting. Some of my colleagues are from Quebec, as am I. I am familiar with Quebec programs; the Régie des rentes du Québec administers disability pensions in Quebec. You cannot be slightly, moderately or very disabled. You are disabled or you are not, and fairly significant financial benefits are already provided for. I don't understand why so many obstacles have been thrown up, whether it is by banks or other people, when an individual has already been determined to be disabled.

In addition, disabled people with mental problems already have someone to administer their affairs; there are trustees and all sorts of institutions. I think we have to start by looking at solutions that do not include creating another organization or other functions; instead, we should be making things easier and removing obstacles that serve no purpose.

Experts have already determined that this person or that person is disabled and the pension or the aid provided is increased accordingly; there are adults who don't have anyone and who have mental problems, but there is always someone to look after them. Besides those who live on the street; that issue is not as well managed, I must admit. But for those who are already looked after, I think that they already meet the conditions to be part of this program.

What is surprising is that we are starting everything from scratch and everyone is trying to curb their access, whereas they should automatically be eligible for the program as soon as they are determined to be disabled. We are asking you to simplify the process.

When you consult with your people next week, will you be able to reach a practical solution that would apply in conjunction with existing programs?

In Ontario, there is also an organization that looks after people who are already disabled and to whom you already pay benefits. In fact, you allow them to get on with their everyday lives.

I think that what is expected of the people in this field is that we should be given a way of facilitating access to benefits and also to adapt this access so that it applies — you talked about people who have Down syndrome — based on people's disabilities.

If you want a clear answer, you will have to ask a clear question, especially when you are meeting with experts as you are going to do. If it is in those terms, you will enable us to make a recommendation to the government that does not seek to add new measures, but rather to simplify those that are already in place. Perhaps we could even remove some of these measures. If a province rules that someone has a disability, I don't see why the federal government would not do the same thing; after all, we are talking about the same person. We are trying to go about this in different ways, but the principle of universality also applies. The provinces do not all use the same process to determine which people are disabled, but we should be able, in conjunction with the provinces that have their own programs and original mechanisms, to work along the same lines as those proposed at the beginning of the project undertaken with the provinces.

Senator Tkachuk, the floor is yours.


Senator Tkachuk: I think you said there were approximately 500,000 people in the country who were eligible for the RDSP. How many in that group would be considered mentally incapable of making these decisions and in need of an RDSP, which I think is the big problem here?

Ms. Gamage: I don't know that any of us knows the exact number or even a percentage, but it's a good point, senator.

Senator Tkachuk: You could find out, couldn't you?

Ms. Gamage: We could find out, but the point is a good one.

We're not talking about the 500,000 people who could qualify for an RDSP; we're talking about a smaller subset of that. And then we're talking about an even smaller subset of that subset, because the people who don't have a legal representative, they could have the mental capacity to do some things but not others, because ``incapacity'' is not a global concept; someone is not necessarily incapable of doing everything in that they can be capable of doing one thing but not another.

For example, they could be capable of granting a power of attorney but incapable of managing their property. In Ontario, at least, these are two different tests set out in the Substitute Decisions Act.

So when you ask who we're talking about here, we're not just talking about the subset of people with mental disabilities, we're talking about the smaller subset of those people who are incapable of establishing the contract with the financial institution to set up the RDSP.

The other point I want to make is in reference to Madam Chair's comment. It is regarding simplifying the matter and coming to some simplified way to deal with this as opposed to making it more complex and layering more. Who wants to make the Income Tax Act more complex? It's certainly complex enough.

Referring back to my earlier comments, I would be doing a disservice to my clients if I didn't hammer this point home: The simpler we make the process, the greater the risk of abuse.

If we're talking about taking this out of the guardianship realm, where there are all kinds of safeguards built into the process — so when someone applies to be someone's guardian, it is being vetted by the court. In Ontario and many other jurisdictions, it is being vetted by the Office of the Public Guardian and Trustee.

You have to serve your application with that office for all of the immediate family members of the disabled person. There are many eyes reviewing the application and vetting it at the front end. The person can't even get appointed without going through that rigmarole.

Mr. Desmarais: My view of this is that the RDSP was modelled on other registered plans that already exist, essentially, the Registered Retirement Savings Plan. In this case, I think I'd like to focus on the Registered Education Savings Plan, which is seemingly for a young child. When the child is going to go to school, we try to fund his or her education. The plan is for the beneficiary, and the beneficiary is the child. We do not ask the parents to pass the account. There's not a huge oversight over these plans. I think we should try to have a bit of flexibility with the RDSP, similar to the RESP. It exists so that we can fund a child's education. The RDSP exists for the financial security of the disabled person.

Ms. Gamage: Except an important difference is that the RESP is not the child's money, whereas the RDSP is the beneficiary's money. You can't take away the safeguards and make it the same as the RESP process because you're not talking about the parent's money.

Senator Tkachuk: You didn't say the same; you said similar.

Mr. Desmarais: That's my point. I do think we need safeguards, and I absolutely agree with my colleague that safeguards must be in place. What I'm trying to say is that the RDSP was modelled on other registered savings plans, and I think this could be a starting point. I absolutely agree with my colleagues that safeguards must be in place to protect the beneficiary.

Senator Tkachuk: We're going back to that number again, a limited number. If there is anyone else who has information on that, that would be great because I would like to get on to another question.

Ms. Tamblyn Watts: Senator, just briefly, there have been two national studies done by the Planned Lifetime Advocacy Network in cooperation with another grouping of major organizations looking at disabilities. One of them had the feedback of over 1,200 individuals for its national study, which is an appropriate cohort to take a section out of. It was estimated from that study that at least 10 per cent of people with disabilities would have indicated that the primary reason that they did not have an RDSP was because of this capacity problem. That's not a full answer to your question, I understand.

Senator Tkachuk: That's a good answer, though.

Ms. Tamblyn Watts: Senator, what I can do in my follow-up is to provide both of those national studies to the committee.

The last piece I wanted to pick up on is how you would go about using the mechanism for the solution if you were using the constitutional solution. With respect, I would offer that it would be done through an expansion of the definition of the qualifying person in the Income Tax Act. Already, there have been recommendations in that regard. Again, I can provide some of that information to the committee. There has been an excellent submission on this notion of ``qualifying person'' by a number of key organizations. It does take the model of the accessible capacity notion, including monitors and so forth, with some safeguards and protection. It takes the B.C. model, but it would import it, senators, into the notion of ``qualifying person,'' which already exists within the Income Tax Act. So I think that's the mechanism we could use.

Senator Tkachuk: I'd like to ask another question.

Ms. Mason-Case, you talked about the work that you were doing and about other options for guardianship. What do you mean by that? Does that mean a church group? Would you have people trying to qualify? I would think that, if I had a child like that, the people that I would trust would be the church I belong to, for example, who would administer the trust for a disabled child if my wife and I passed away. Are those the kinds of options you are looking at?

Ms. Mason-Case: We have looked at that option, yes. We have looked at the question of whether community organizations, in particular, not-for-profit organizations, could act as representatives for adults who don't have access to a trusted person, such as a family member or a friend, but who may not want to enter into the guardianship system and have the public guardian and trustee act on their behalf.

We have heard mixed views on whether or not that should take place. Appointing a community organization is a little bit more complex than appointing an individual. That has to do with issues surrounding the accountability of the organization and how to select an organization that would be suitable and also issues surrounding a representative of the organization being entitled to enter into a transaction with a financial institution because the community organization cannot do so on its own as an organization. It has to be an individual that actually enters into a contract with the financial institution.

Senator Tkachuk: It's going to be a bigger problem, too, if there are no families. There are parents with no kids or parents with one child. It's very possible that the child will pre-decease the parents. With one parent left and the other with dementia, what is going to happen? Who will look after these people? Who will make all of their decisions?

I have one more question, chair. I'm a little concerned; we don't want to get into constitutional issues. The thing about provinces and the federal government is that it is always easier to come up with a federal solution, but I kind of like the solution of Pearson and Diefenbaker. If we provided incentives to the provinces to come up with legislation, we'd get a wider variety of possibilities. You've got the B.C. model. What if the federal government said, ``These are the kind of grants or assistance you would qualify for to look after these people because they have to be looked after''? I used to work in the provincial jurisdiction. They all like money. That's the greatest incentive of them all. The federal government could come up with a piece of legislation that would provide that, if they did this, worked on it and had a piece of legislation, they would get cash. I don't know, but I think there has to be a way to do that without getting into the constitutional morass of us doing it. Then we'll go to courts, and Quebec won't agree. It'll just be a disaster.

The Deputy Chair: They already disagree.

Senator Tkachuk: Exactly, so this isn't going to happen. We have to get the provinces to do it. I'm wondering if the smart people in your organizations will give some thought as to how we might encourage the provinces to produce a piece of legislation that would help solve this problem. That's my last question.

The Deputy Chair: Senator Campbell, you wanted to add something?

Senator Tkachuk: They might want to comment on it. I don't know whether they do or not, but it's possible.

Ms. Gamage: I would comment that it certainly would be helpful to the provinces if there were a message from the mother ship saying that these are the concerns regarding the problem and potential solution. If it is going to be up to the provinces to deal with the management piece of this, if the access piece is going to be more easily dealt with in the Income Tax Act, then that's fantastic. That's a huge hurdle to overcome. Then, if the ongoing management piece is going to be left to the provinces, it would certainly be helpful if there was a unified message to the provinces, saying, ``Now you go fix this, but here are some options.''

Senator Tkachuk: A template.

Ms. Gamage: Here's a template. Here are all the concerns we've heard, and here are all the concerns you need to address.


Senator Rivard: Mr. Desmarais answered my colleague's question in part. Comparisons have been done with Registered Education Savings Plans where parents make a contribution, and we know that the federal government adds an annual subsidy and that in Quebec, the province makes a contribution as well.

In the case of RRSPs, taxation is postponed. The tax that is not paid during the year is postponed until later, when the person retires. The TSFA has been unbelievably successful. Some 8 million Canadians already have at least one TSFA.

So why is the RDSP not as popular? You mentioned 70,000 out of a possible 500,000. Is it because of the eligibility conditions or because Canadians are not aware of its existence or do not know the details of this program?

I would like to add something else. We heard from bankers a few weeks ago. I asked them what we could do to ensure that this program is better known. They answered that they do not receive the names of the persons with disabilities from Statistics Canada and that the Canada Revenue Agency does not publish those names.

First of all, why is it not more popular? Do you have any suggestions for how to make this program better known?

Mr. Desmarais: Thank you. I think that you have hit the nail on the head, that is, not enough people know about this program or about its availability. Signing up for the program can appear complex for some people. First of all, parents must apply to receive the disability certificate. There are certain conditions that must also be complied with.

Some people may find this discouraging. Certain professionals are also responsible: financial advisors, lawyers and those who help persons with disabilities. They have a role to play to promote the program and provide information on it. My colleague and I specialize in estate law. Our firms also look after files on bodily injury. Clients must be made aware that this program is available because its benefits are significant. The government's contributions are more than significant, because they can represent up to 300 per cent, which is practically impossible to receive as a return on any other type of investment.

These characteristics mean that better promotion and more knowledge, both on the part of professionals and those involved, will provide solid support for the program, because it affords the opportunity to assist people substantially.

Senator Rivard: How can bankers or those who set up these accounts find their clients? With pamphlets at bank counters? In certain provinces, there are organizations for persons with disabilities who can be contacted, but we need to know how to contact them.

Mr. Desmarais: Yes. Two points: first, to be eligible for the disability tax credit under the Income Tax Act, people have to apply. That is a good starting point. Anyone who claims the tax credit is automatically eligible. That would be a good place to start with regard to promoting the program.

The Income Tax Act is specific. Section 118.3 refers to this matter. Anyone who is eligible for the tax credit is automatically eligible for the Registered Disability Savings Plan. Those are the people we have to target primarily. That is the starting point.

Senator Bellemare: This might not be possible, but we should have a financial picture of the income of adults with a mental disability. We are talking about up to 500,000 people, which I imagine include children. It would be good to see to whom we are trying to offer this product. Is this information available?


Mr. Desmarais: The Ontario Disability Support Program is very strict on income. If you want to have a starting point in Ontario, someone who is under ODSP can generate, if I recall, $6,000 of income annually. Of course, ODSP is providing financial support to these people, but they are living on minimal income annually. That's exactly why, in my view, the fact that the RDSP is an exempt asset allows them to provide for longer financial security in the future. For the ODSP, the criteria are fairly strict when it comes to annual income.


Senator Bellemare: You have brought up a point that I find interesting. Do the families and the persons with the disability have the means to contribute, even if the government's benefits offered by these programs are very generous? Do they have the means to save with the help of this plan?


Mr. Desmarais: In Budget 2012, we added flexibility to that with a rollover portion of RRSPs. And we can provide through wills for the disabled person. Those are great starts.

The concern of my client is to ensure that after their death, their child or brother or sister will be cared for. If they can't do it while alive, they might provide assistance later on and it is possible.


Senator Bellemare: Our clientele, then, is not the 500,000 people, but rather the children. This program will have an impact later, when the children have grown up and will be able to withdraw money from these savings.

Mr. Desmarais: Let me make a clarification. The number 500,000 corresponds to the number of people who are eligible. This is an important distinction. That is what I read, 500,000 eligible people. I interpret that to mean that 500,000 people are eligible for a disability credit under the Income Tax Act. How many need it?

Senator Bellemare: Of all ages.

Mr. Desmarais: Any person who can claim the tax credit is eligible for the program.

Senator Bellemare: That could mean that many of these people receive provincial aid.

Mr. Desmarais: Yes.

Senator Bellemare: Thank you very much.

The Deputy Chair: Among these 500,000 people, those under 18 and most of the adults do not have large incomes.

Ms. Gamage, I have a problem. It is difficult to talk about abuse against those who have no money or who are poor. There might be abuse if there are wills and inheritances.

All of the programs can have standards in place to ensure that certain mechanisms will be put into action if the person inherits a large amount of money — without putting everyone, rich or poor, on an equal footing.

This is for parents who have a disabled child, parents who have the means and who put money aside for their child. All of the money that goes into the fund comes from the parents and not from the child. If a parent with a disabled child starts to invest when the child is very young, that money might grow more substantially. But earlier we were talking about an average, after seven years, of $15,000 per year. We make standards as if they all had $1 million.

The current program follows the same standards and respects the same safeguards, whether the users have money, or little money, or no money. We need to ensure that the implementation measures include a mechanism that is put into action when large sums of money are involved, and that there is better protection for these people, so that when necessary they can use services that will structure the program in such a way that the mentally disabled person, in this case, is protected.

A person with a physical handicap does not need this, because they can manage it themselves. Nothing prevents a child that is quadriplegic from studying; their disability would not prevent them from taking an accounting course. They will be able to take advantage of these programs.

Here, everyone is on an equal footing. We seem to want to talk about universality, yes; but how can we talk about universality when we know that abuse can take place in maybe 5 per cent of cases, because we are applying a rule to 100 per cent of the people as if they were all rich? I would like to hear your point of view as to whether or not there could be thresholds that would trigger a security protocol when large sums of money are involved. Because otherwise, we are making things complicated for people who do not have a lot of money, who do not save very much and who, at the end of the day, do not contribute at all. If we want the program to work, we need to make it accessible and maybe include special measures for people with a mental disability who will need protection when they inherit assets or when they are given them during their lifetime. Would you like to comment on this subject?


Ms. Gamage: I have two points. I'm glad you raised this.

The first point is that, yes, we are talking about people who may only have a very small amount of savings that they could put into an RDSP. But to many of my clients who are on fixed income and have these types of disabilities, even $10,000 is a massive amount of money. Let's say they received it from an inheritance, as a gift or through some kind of windfall to them, but to them it is a huge amount of money.

The term ``abuse'' is individual and subjective, and it can apply to someone with $1 million or someone with $10,000. If the person with $10,000 is living off $800 a month, that $10,000 is like a million dollars to them. So there can be abuse regardless of the amount of money we're talking about.

The second point relates to your comment about the parents of children saving money. Of course, these parents are doing everything they can for their children with disabilities. They have worked hard to support this child, to save money for them, and to treat the vast majority of good people with the same standard as the 5 per cent, let's say — we're talking in percentages, but don't hold me to those. How is it fair to treat those parents the same as the 5 per cent of people who are going to be perpetrating the abuse?

I cannot tell you how many times I have had sitting across from my boardroom table the parents of a catastrophically brain-injured child, crying in my office because, after everything they've been through — six years of personal injury litigation and really difficult rehab and recovery with their child who they thought was going to die at the time of the accident — and to now have their child still in their lives and to be sitting across from me where I have to say to them, ``Now you have to go through another court process to apply for guardianship. Oh, but wait — that's not all; there is more. After you go through this grueling process of applying for guardianship, you have to go back to the court every two years to show that you're not a criminal — not a part of that 5 per cent.''

It's terrible to have to say this to the majority of people. I do not know how you can do away with that system, because, in order to catch the 5 per cent, you have to hold everyone to that same standard.

Senator Ringuette: In regard to the issue of going back to the courts every two years, I understand it's a provision in Ontario. However, if we go back to a national automatic setup and so forth — and the Income Tax Act could also include an annual audit of these accounts.

Ms. Gamage: That is exactly it: The safeguards don't have to be as stringent as what they are for the guardianship process. This is what we're talking about when we talk about a solution; it's having safeguards but safeguards that are reasonable and don't act as a barrier to accessing the product.

Ms. Tamblyn Watts: I could build a piece on that. Looking at it from the level of a national solution, such a solution would allow the appointment of one or more qualifying persons — that is the language that is already in the Income Tax Act — who can act as a joint RDSP account holder in their capacity of decision-making supporter.

A form has been created and proposed by the Planned Lifetime Advocacy Network and the Canadian Association of Community Living, which I commend for your review and consideration. That form would be standard across the country.

I have empathy for the financial institutions that have to work in this system. I spend a lot of my time trying to unbundle and manage the concerns with powers of attorney, supportive decision-making and so forth from a banking point of view. I have empathy for that.

May I offer that the financial institutions are key proponents in this as well. They may want to set it up, but they are in a circumstance where they are bound by unclear provincial legislation. If they had the assurance in the way we do with RRSPs, RRIFs and other disability, education or retirement savings plans, then it would be easy and clear for them to use this form that has been proposed. It would be engaged with the contractual capacity of the B.C. model.

To your point of abuse, which is near and dear to my heart, in its consideration, the model that has been proposed would allow a third party role. It requires standards that need to be signed onto by the person willing to do it, including the assumption of a fiduciary standard.

So there has been a model proposed. It exists within the federal jurisdiction and it allows for that solution to be clean and fairly easy, and it allows both the financial institutions and I believe the systems at play to manage them without muddying the provincial jurisdictions.

I already sit in those provincial trenches, and I can tell you it is very complex, and that quilt is not going to unravel any time soon. So I would offer the opportunity to consider how you can, as our chair has mentioned, get rid of the red tape. I would offer that a national solution rests in your hands.


The Deputy Chair: Thank you to all the witnesses. You have shed some light on these issues and we have made a lot of progress on the question of barriers and opportunities which will eventually make it possible for these 500,000 people to access the program. You have played an extremely important role in the work of our committee. Thank you for taking the time to meet with us and to share your knowledge.


Thank you again and for the work you now have to do after meeting with us.

(The committee adjourned.)