Wills & Estates

December 21, 2018


Kathryn Balter

This summer, I wrote an article entitled "Big Changes to Gifts, Trusts, and Savings for ODSP Recipients" outlining some changes that would be coming into force in the fall of this year. I had to quickly update that article to report that the Ford government had reversed all of those positive changes. The Ford government announced that in the 100 days following July 31, 2018 it would work on 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."

That 100 day period ended on November 9, 2018. On November 22, 2018, the Ministry of Children, Community and Social Services announced some very vague plans for reform. With respect to ODSP, the announcement stated that the intention was to "[r]edesign [ODSP] to provide annualized income support with far fewer reporting requirements for Ontarians with severe disabilities." In the accompanying announcement entitled "Reforming Social Assistance", the following items were listed under "Supporting People with Disabilities with Dignity":

  • Redesigning ODSP to consolidate complex supplements and benefits into simplified financial support for people with severe disabilities [emphasis added]. Financial eligibility for ODSP will be reviewed yearly, instead of monthly. Front-line staff will work with people to help them connect to other supports.
  • Providing clarity to the system around who qualifies for ODSP in the future and looking at aligning Ontario's new definition of 'disability' more closely with federal government guidelines.
  • Improving earning exemptions for ODSP recipients by introducing a $6,000 flat annual exemption plus a 25 per cent exemption for earnings above $6,000 instead of the current approach which reduces support after monthly earnings exceed $200.

The focus of the government's press release is squarely on encouraging people on social assistance to return to work and to earn income rather than relying on social assistance. This does not recognize the situation that many people on ODSP face, which is that they do not have the ability to work as a result of their disability. Also, it appears as though the exemption for income earned from employment has decreased from 50 per cent to 25 per cent. How this encourages people receiving ODSP benefits to seek employment is unclear. It is not stated whether the current $100 work benefit will continue under the new legislation.

Furthermore, the notion that Ontario's definition of disability should align more closely with federal government guidelines is vague as there is no single federal definition of "disability." 1 It may be that this will result in a significantly reduced eligibility to obtain ODSP. Advocates have indicated that ODSP currently supports people with episodic disabilities and mental health disabilities and those people may no longer be eligible for ODSP if the reform adopts certain federal definitions.2

The current definition of a person with a disability in the Ontario Disability Support Program Act3 requires that: the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more; 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 the impairment and its likely duration and the restriction in the person's activities of daily living have been verified by a person with the prescribed qualifications.

According to the Canada Pension Plan,4 the word "disabled" is defined as a person who is determined to have a severe and prolonged mental or physical disability. Severe is defined as an incapacity regularly to pursue any substantially gainful occupation. Prolonged is defined as likely to be long continued and of indefinite duration or is likely to result in death.

While the word "disability" appears in the Income Tax Act5 220 times, there is not a single definition for disability therein. The ITA does, however, deal with mental or physical impairment in paragraph 118.3(1). Like the CPP, the ITA references a severe and prolonged impairment and requires that the effect of such impairment significantly restricts the individual's ability to perform more than one basic activity of daily living or would restrict such individual's ability but for therapy that is essential to sustain a vital function of the individual that is required to be administered at least three times a week for a total duration averaging not less than fourteen hours a week and cannot reasonably be expected to be of significant benefit to persons who are not so impaired.

In the Pension Act,6 "disability" is defined as "the loss or lessening of the power to will and to do any normal mental or physical act." The following Acts include no definition of "disability": Canada Disability Savings Act7; Canada Labour Code,8 Canada Elections Act,9 and the Criminal Code.10 11

The government has not proposed any legislation at this time, so the details of any reform remain vague.12


1 See Darren Lund's article, "Changes are Coming to the Ontario Disability Support Program" for a review of the federal definition of "disability": https://www.allaboutestates.ca/changes-coming-ontario-disability-support-program/

2 https://www.thestar.com/news/gta/2018/11/19/making-sense-of-ontarios-social-assistancereforms.html

3 S.O. 1997, c. 25, Sch B, s. 4.

4 R.S.C., 1985 c. C-8 [the "CPP"].

5 R.S.C. 1985, c. 1 (5th Supp) [the "ITA"].

6 R.S.C. 1985, c. P.6.

7 S.C. 2007, c. 35, s. 136.

8 R.S.C. 1985, c. L-2.

9 S.C. 2000, c. 9.

10 R.S.C. 1985, c. C-46.

11 This is not an exhaustive list of federal statutes with or without a definition of disability, by any means. It is merely an illustration of the vagueness of the reform that we may see in the near future in Ontario.

12 Coincidentally, a private members' bill, Bill 60, was submitted for its first reading in the Legislative Assembly of Ontario on November 21, 2018. The Bill proposed to amend the Ministry of Community and Social Services Act to establish a Social Assistance Research Commission, which would be composed of individuals with expertise regarding socioeconomic policy and research with respect to poverty, living costs in Ontario and the challenges faced by members of vulnerable groups living in poverty, including but not limited to individuals with disabilities.



Kathryn Balter


t: 416.864.0112

Fogler, Rubinoff LLP
77 King Street West
Suite 3000, PO Box 95
TD Centre North Tower
Toronto, ON M5K 1G8
t: 416.864.9700
f: 416.941.8852

This publication is intended for general information purposes only and should not be relied upon as legal advice.

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