Pelletier v. Pelletier

The case of Pelletier v. Pelletier, 2025 BCSC 43, is about allegations of financial abuse by a granddaughter of her grandfather’s wealth at a time when he was vulnerable and had been diagnosed by both a physician and a geriatric psychiatrist with dementia. The physiatrist wrote a letter in November 2018 opining that he was “no longer capable of making his legal and financial decision.” One of the interesting features of this case is that when this case went to trial about 5 and a half years after the diagnosis of dementia, and the grandfather gave evidence, the trial judge, Madam Justice Whately, found that he “displayed no outward signs of cognitive decline, nor any of the behaviours or symptoms associated with dementia or other mental disorders that featured so prominently in the evidence.”  What happened?

Dora and Claude had three children, two of whom had died. They were close to their granddaughter Brittany Adcock, who was married to Darryl Adcock.

Dora and Claude owned a 48-acre farm as well as a residential property at Graham Road near the farm. By 2018 there was tension between them over whether to continue to farm. Claude wanted to continue. Dora didn’t. They had both retired from their main employments. She was born in 1944 and he in 1938. She wanted to move into the Graham Road property, closer to Brittany and her family. He was buying new equipment for the farm, including a tractor for $45,000, a Power Harrow for $13,000 and an SUV for $40,000, and Dora didn’t think they could afford it.

In 2018, they sold the Graham Road property to Brittany and Darryl for less than fair market value. No claim was made in respect of this sale, nor was there any suggestion that Brittany and Darryl did anything improper in buying the property for the price they paid.

Claude’s mental functioning deteriorated. According to Justice Whately:

[11]         It is true that Claude suffered from serious health issues requiring medication. This medication led to catastrophic effects: his behaviour and personality changed, and I accept that he became cantankerous, less rational, and generally difficult to be around. Claude suffered from symptoms that mimic dementia, such as temporary cognitive and functional impairments, and he also likely suffered from increased impulsivity and paranoia.

In diagnosing Claude with dementia, his doctors and nurses relied in part on collateral reports from his granddaughter Brittany and Dora, which were inaccurate. Justice Whately wrote:

[175]     Brittany made various statements to Claude’s medical professionals later shown to be untrue, exaggerated, or misleading. Some of these include:

a)    As of November 2018, Brittany variously told different health care providers that Claude had spent $300,000, $350,000, or $400,000–$500,000 on farm equipment. She informed one doctor that she had “tallied” the spending, which totalled at least $300,000.

b)    As of November 2018, Claude had gone through all his and Dora’s savings and was starting to dip into their retirement fund. In fact, in November 2018, Dora and Claude were in a financially positive position.

c)     Claude had continued an affair for 37 years with a woman in Ontario.

d)    Claude was making paranoid and obsessive demands about accounting of his money and demanded $30,000 from the family to hire a lawyer to revoke the POA.

Claude had previously made an enduring power of attorney in 2011, appointing Dora as his attorney and Brittany as his alternate. After the diagnosis of dementia, Dora and Brittany effectively took over his affairs, and he lost access to his bank account. He did sell farm equipment and livestock, which he testified totaled over $240,000, and which he gave to Dora.

Dora reactivated a line of credit, which she used for the construction of a house for herself on the Graham Road property. She used the power of attorney to sell the farm in July, 2020, for $999,999. Out of those proceeds, she paid $335,000 owing on the line of credit and transferred $401,611 from her joint account with Claude to a joint account Claude held with Brittany. The same amount was then transferred into Brittany and Darryl’s joint account. Brittany and Dora testified that the funds represented a $200,000 payment to compensate Brittany and Darryl for building a guest suite on their property for Claude’s use and $200,000 was a gift from Claude and Dora for the benefit of the great-grandchildren’s education. Further funds were later transferred from Claude to Brittany and Darryl for further work on the guest suite.

Claude lived in the guest suite for approximately 20 months from April 2020 until October 14, 2021.

In October, 2021, after a dispute in which Claude demanded an accounting of his finances, he was apprehended under the Mental Health Act. While hospitalized, his medication was changed, and following further tests, another psychiatrist, “Dr. Schovanek found that Claude was capable of managing his basic finances, balancing a check book, and making simple meals safely. Dr. Schovanek concluded that “Claude is believed to be capable of re-designating a power of attorney.” Claude was released, and moved in with his son.

Claude signed a revocation of his power of attorney, which he mailed on December 20, 2021 to Brittany, and delivered to Dora on December 23, 2021.

Between October and December 2021, Dora negotiated a separation agreement with Brittany purporting to negotiate on Claude’s behalf as his alternate attorney, on the basis that Dora no longer had authority to act by virtue of their separation. The agreement was signed on December 29, 2021, and contained a provision recognizing a gift of $200,000 to Brittany and Darryl for the guest suite, and another $200,000 to them for their children’s education. Claude did not participate in the negotiations, and Brittany signed on his behalf.

Dora brought a family law claim against her Claude. They had been married for 60 years.  Claude brought a counterclaim in the family law proceeding against their granddaughter, Brittany and her husband Darryl.

The parties agreed that the separation date was November 3, 2021.

In the proceeding, Claude tendered a report by Dr. Passmore, who opined on his capacity to instruct counsel and did a retrospectively to December 2021. As set out in the reasons for judgment:

[90]         Dr. Passmore opined that, as of the date of his examination of him, Claude was capable of managing his financial affairs, instructing legal counsel, making a will, making a POA, and making a representation agreement.

[91]         Dr. Passmore also opined that Claude’s cognitive impairment and below normal MoCa (Montreal Cognitive Assessment) scores which led, in part, to his diagnosis of dementia, were primarily due to the side effects of medication.

Claude’s claims included breach of fiduciary duties, unjust enrichment, and knowing receipt of funds in breach of trust. He also sought to set aside the separation agreement.

Justice Whately found that both Dora and Brittany had fiduciary duties to Claude, and that they breached those duties. In addition to having fiduciary duties by virtue of holding a power of attorney, Brittany was also in an ad hoc fiduciary before she stepped into the role of an attorney following Dora’s separation from Claude.

Justice Whately’s decision includes a useful summary of ad hoc fiduciary relationships:

[200]     An ad hoc fiduciary relationship is one that arises out of the specific circumstances and dynamics of the particular relationship: Sledin Estate v. Rusin, 2011 BCSC 1207 at para. 65.

[201]     In Frame v. Smith, [1987] 2 S.C.R. 99, Justice Wilson (in dissent), identified three characteristics that are common to most relationships in which fiduciary obligations have been imposed:

1.     The fiduciary has scope for the exercise of some discretion or power;

2.     The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and

3.     The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power

(the “Frame Factors”).

[202]     The Frame Factors are still widely cited in the case law as “indicia” of an ad hoc fiduciary relationship. However, they are no longer considered to be the complete test for establishment of a fiduciary relationship. In Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, the Supreme Court of Canada restated the test for the existence of an ad hoc fiduciary relationship as follows:

…[F]or an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship as described by Wilson J. in Frame:

an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries;

a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and

a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control.

[203]     Fiduciary duties can arise without formal appointment as attorney, where an individual takes on the role of managing the financial affairs of a relative. For example, the addition of an adult child to an elderly parent’s bank account for the purpose of assisting with their finances may be sufficient to trigger fiduciary duties, regardless of the parent’s capacity and regardless of whether the child was actually acting as power of attorney for their parent: see e.g. Wedemire v. Wedemire, 2017 ONSC 6891, and Miller v. Miller, 2011 ONSC 7239.

Justice Whately found that both Dora and Brittany breached their fiduciary duties, but Dora did not benefit. Both Brittany and Darryl were unjustly enriched by the depletion of Claude’s funds from the sale of the farm and there was no juristic reason for them to retain a benefit.

The Court also held Brittany and Darryl liable for knowing receipt, the principles of which are summarized in the following passage:

[231]     The elements of a claim for knowing receipt have been set out in Citadel General Assurance Co. v. Lloyds Bank of Canada, [1997] 3 SCR 805 [Citadel], as follows:

a.              receipt of trust property for one’s own benefit (as opposed to as an agent for someone else); and

b.              knowledge or constructive knowledge that the property was transferred in breach of trust or fiduciary duty.

[232]     The threshold of knowledge required to satisfy the second element of the test is low. In Citadel, at para. 49, La Forest J. described the knowledge standard as follows:

…relief will be granted where a stranger to the trust, having received trust property for his or her own benefit and having knowledge of facts which would put a reasonable person on inquiry, actually fails to inquire as to the possible misapplication of trust property.

[233]     Liability for knowing assistance is imposed where a third party (1) assists in a breach of fiduciary duty with (2) actual knowledge that the fiduciary is in breach: Air Canada v. M&L Travel Ltd., [1993] 3 S.C.R. 787.

[234]     Brittany and Darryl knowingly received and personally benefitted from Dora’s breach of fiduciary duty.

[235]     Brittany knew, or ought to have known that the property was transferred in breach of Dora’s fiduciary duty. The evidence establishes that Brittany knew that Dora had a fiduciary obligation to Claude pursuant to the POA. Brittany knew, or ought to have known, that a gift of Claude’s money by Dora to Brittany and Darryl was not in not in Claude’s best interest and that he was either not aware or did not consent to such a gift. Alternatively, even if Claude did consent to some form of gift being made during the period of his incapacity, there are safeguards in place to prevent incapable persons from making gifts that are contrary to their best interests. (see s. 60.2 of the Adult Guardianship Act, R.S.B.C. 1996, c. 6 and s. 20 of the PAA and Regulations). Claude’s best interests, specifically with respect to his financial security, were entirely ignored by his fiduciaries in this case.

The separation agreement was set aside, and Justice Whately ordered Brttany and Darryl to pay damages as follows:

[242]     I order that Brittany and Darryl pay damages to Claude in the amount of $437,535.00. For clarity, I notionally base this amount on:

·                 50% of the 200,000 gift for the education fund ($100,000)

·                 50% of the 200,000 gift for the guest suite ($100,000)

·                 50% of the amount paid against Dora and Claude’s LOC from the Farm Sale proceeds,     which was ostensibly used to pay for the construction of Dora’s House on the Graham Road Property ($167,535)

·                 $70,000 to approximate the various amounts taken or used by Brittany during the period of incapacity, including the “extras” or other unexplained withdrawals from Claude’s funds.

Practical Guide to Elder Abuse and Neglect Law in Canada

 The Canadian Centre for 'Elder Law has an excellent website dealing with elder abuse and neglect, entitled "Practical Guide to Elder Abuse and Neglect Law in Canada." It includes sections describing abuse, best practices, laws on reserves, with summaries of the law and links to relevant legislation in all provinces as well as federal legislation.

Community Care and Assisted Living Amendment Act

Last week, the British Columbia Minister of Health introduced the Community Care and Assisted Living Amendment Act, 2016. The proposed amendments are consistent with the British Columbia Law Institute and Canadian Centre for Elder Law's Report on Assisted Living in British Columbia, published in 2013.

As set out in the British Columbia Law Institute's press release on March 8, 2016,

Among the recommendations in the Report on Assisted Living in British Columbia published by BCLI and CCEL in 2013 were to repeal the restriction on assisted living residences limiting them to providing no more than two prescribed services. Bill 16 would remove this restriction. This will allow for a greater range of living and care options to residents and allow them to remain longer in the same apartment-style setting and retain much independence as possible.

Other recommendations included clarifying the mental status requirement for eligibility to enter and remain in assisted living, and amending the meaning of “spouse” in the Community Care and Assisted Living Act to include a person who has been in a marriage-like relationship with a resident for at least two years as well as a legally married spouse. Bill 16 would also make these legislative changes in terms that coincide closely with the recommendations in the BCLI / CCEL report.

2015 Canadian Conference on Elder Law

The Canadian Center for Elder Law together with the Continuing Legal Education Society of British Columbia are presenting a two day conference: The Journey of Aging – the Law and Beyond. The conference will be held on Thursday and Friday, November 12 and 13, 2015 at the Pan Pacific Hotel, 999 Canada Place, Vancouver, B.C. Here is the description from the CCEL website: 

DAY 1: Connecting Across Discipline and Geography
Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults.

DAY 2: Key Practice Challenges and Hot Topics in Legal Practice
Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.

Keynote speakers will include:

• Isobel Mackenzie, BC’s Senior’s Advocate
• Dr. Andrew Wister, Chair, National Senior’s Council
• Barb MacLean, Chair, BC Council to Reduce Elder Abuse

Confirmed presenters:

• Catherine Romanko, BC Public Guardian and Trustee
• Andrew S. MacKay, Alexander, Holburn, Beaudin and Lang
• Geoffrey W. White, Geoffrey W. White Law Corporation
• Diedre J. Herbert, McLellan Herbert
• John-Paul Boyd, Canadian Research Institute for Law and the Family
• Anna Laing, Fasken Martineau
• Kimberly A. Whaley, Whaley Estate Litigation
• Honourable Marion J. Allan, Clark Wilson LLP
• Barbara Buchanan, Law Society of BC

Panels will include:

• Advance health care planning—implications of the Bentley decision
• Debate: Would a national power of attorney registry help reduce elder financial abuse?
• Update on guardianship law in BC—what’s happening one year after legislative change
• Who do you call when you suspect elder abuse? Introducing the new BC decision tree
• Physician assisted suicide after Carter—where do we go from here?
• Late life separation and divorce
• Dementia and client competency: practice tips, communication strategies and ethical issues
• The when and how of mental capacity assessments

Registration information is available on the CLEBC site here.

2015 Federal Budget Contains Changes to Tax Free Savings Accounts and Registered Retirement Income Funds

The 2015 Canadian Federal Government’s Budget released on April 21, 2015 does not appear to contain any changes that will have an impact on trusts or estate-planning (perhaps mercifully given the problems created by the 2014 Budget). There are a couple of changes that will affect retirement savings.

First, the Government has increased the amount that you may put into a Tax Free Savings Account (“TFSA”), from $5,500 per year to $10,000 per year effective January 1, 2015. The Budget has a nice summary of how TFSAs work.

Available since January 1, 2009, the TFSA is a flexible, registered general-purpose  savings vehicle that allows Canadian residents aged 18 or older to earn tax-free investment income, including interest, dividends and capital gains. TFSAs can include a wide range of investment options such as mutual funds, Guaranteed Investment Certificates, publicly traded shares and bonds. Contributions to a TFSA are not tax deductible, but investment income earned in a TFSA and withdrawals from it are tax-free. Unused TFSA contribution room is carried forward and the amount of withdrawals from a TFSA can be re-contributed in future years.

TFSAs differ from Registered Retirement Savings Plans (“RRSPs”) in a few key ways. Unlike RRSPs, there is no tax deduction available when you contribute to a TFSA. But TFSAs can be withdrawn without tax, while you pay tax on RRSPs when you withdraw funds from them. With both TFSAs and RRSPs, funds can grow inside the plan without tax.

Generally, if you are in a low tax bracket, it probably makes more sense (and cents) to contribute the up to the maximum permitted in a TFSA in priority to RRSP contributions, especially if you think you may later end up in a higher tax bracket. TFSAs are also a better vehicle for saving for things other than retirement, such as buying a home.

But if you are in a high tax bracket, RRSPs may be preferable because you get the tax break when you contribute. The benefits of RRSPs are enhanced if you expect to be in a lower tax bracket in retirement.

Another key difference between RRSPs and TFSAs is that with an RRSP when you reach the age of 71, you have to either withdraw the funds from an RRSP, buy and annuity, or convert the RRSP to a Registered Retirement Income Fund (“RRIF”). In contrast, you can retain and continue to contribute to a TFSA until death.

I suspect the most common approach to RRSPs at 71 is to convert an RRSP into a RRIF. With a RIFF you are required to withdraw a minimum percentage each year, the percentage increasing with age. You may take out more than the minimum, but you pay tax on the withdrawals.

This brings me to the second change in the 2015 Budget. The Government has reduced the percentages that you have to take out of a RRIF each year, the effect of which is to allow you to defer tax longer. Here is a description from the 2015 Budget (tables omitted):

The basic purpose of the tax deferral provided on savings in RPPs and RRSPs is to encourage and assist Canadians to accumulate savings over their working careers inorder to meet their retirement income needs. Consistent with this purpose, savings inRPPs and RRSPs must be converted into a retirement income vehicle by age 71. Inparticular, an RRSP must be converted to a RRIF by the end of the year in whichthe RRSP holder reaches 71 years of age, and a minimum amount must be withdrawn from the RRIF annually beginning the year after it is established (alternatively, the RRSP savings may be used to purchase an annuity). This treatment ensures that the tax-deferred RRSP/RRIF savings serve their intended retirement income purpose.

A formula is used to determine the required minimum amount a person mustwithdraw each year from a RRIF. The formula is based on a percentage factormultiplied by the value of the assets in the RRIF. The percentage factors (the RRIFfactors) are based on a particular rate of return and indexing assumption. Currently, a senior is required to withdraw 7.38 per cent of their RRIF in the year they are age71 at the start of the year. The RRIF factor increases each year until age 94 when the percentage that seniors are required to withdraw annually is capped at 20 per cent.

The existing RRIF factors have been in place since 1992. Economic Action Plan2015 proposes to adjust the RRIF minimum withdrawal factors that apply in respectof ages 71 to 94 to better reflect more recent long-term historical real rates of  returnand expected inflation. As a result, the new RRIF factors will be substantially lower than the existing factors. The new RRIF factors will range from 5.28 per cent at age 71 to 18.79 per cent at age 94. The percentage that seniors will be required to withdraw from their RRIF will remain capped at 20 per cent at age 95 and above. Table A5.2 in Annex 5 shows the existing and proposed new RRIF factors.

By permitting more capital preservation, the new factors will help reduce the risk ofoutliving one’s savings, while ensuring that the tax deferral provided on RRSP/RRIF savings continues to serve a retirement income purpose. For example, the new RRIF factors will permit close to 50 per cent more capital to be preserved to age 90, compared to the existing factors (Table 4.1.2).

Report on Assisted Living in British Columbia

Yesterday, the British Columbia Law Institute and the Canadian Centre for Elder Law published a Report on Assisted Living in British Columbia.

As set out in their press release:

“The existing legal framework for assisted living was created in the very early stages of development of this form of housing in the province.  The Report on Assisted Living in British Columbia offers solutions to the legal and jurisdictional gaps in that framework.  It is based on lengthy and detailed deliberations by a very knowledgeable and experienced committee representing a cross-section of the different interests concerned with assisted living,” said Jim Emmerton, Executive Director of BCLI / CCEL. 

The Assisted Living Reform Project Committee that developed the recommendations in the report included representatives from residents’ and tenants’ advocacy organizations, private providers of assisted living, BC Housing,  a regional health authority, the Office of the Ombudsperson, as well as distinguished lawyers practising in the elder law field. 

Assisted living is a form of rental housing where meals, light housekeeping, and certain personal care services are provided to residents in addition to accommodation.  It is intended for seniors and persons with disabilities who require some personal services, but not 24-hour care. 

While the number of assisted living dwelling units in B.C.  has increased greatly over the past decade,  the respective rights and obligations of residents and operators of assisted living facilities remain uncertain in many areas.  The BCLI / CCEL report contains reform recommendations to address these deficiencies in the existing framework, which were also identified and criticized in the Ombudsperson’s comprehensive report on seniors’ care in B.C. issued in 2012.

The BCLI / CCEL report was preceded by a consultation paper that sought input from stakeholders on proposals for improvement and refinement of the framework.  The recommendations in the report issued today were made after detailed consideration of the responses to the consultation paper from assisted living residents and their families, private and public providers of assisted living, care sector workers, and other stakeholders as well as the general public

Canadian Centre for Elder Law Celebrates Tenth Anniversary on Seniors Day, October 1, 2013

The Canadian Centre for Elder Law is celebrating its 10th anniversary on Tuesday, October 1, 2013, from 2:00 pm to 6:30 pm, at the Segal Centre, Simon Fraser University Harbour Centre
515 West Hastings Street, Vancouver, B.C.

This event is also the launch of the Older Women's Dialogue Project Report.

Admission is free, put please register by emailing Sarah Chao at schao@bcli.org.

The program is as follows:

Event Highlights

The Future of Aging: Ted style talk by Rebecca Morgan, Director, Centre for Excellence in Elder Law, Stetson University on aging, caregiving and technology, followed by an interview with CBC’s Rick Cluff, host of the Early Edition

Performance by the Vancouver chapter of the Raging Grannies

Remarks by Honourable Alice Wong, Ministry of State (Seniors)

Launch of the report of the Older Women’s Dialogue Project

Greetings by Jay Chalke, Assistant Deputy Ministry, Department of Justice, BC

Speakers include:

2:15 – 2:30   Kelly Acker, Manager, Strategic Planning, BC Seniors’ Directorate, and Jane Lewis, Executive Director, BC Centre for Elder Advocacy and Support

2:30 – 2:45   Alison Leaney, Vulnerable Adults Community Response, Public Guardian and Trustee of BC

2:45 – 3:00   Sherry Baker, Executive Director, BC Association of Community Response Networks

3:00 – 3:15   Doug Melville, Ombudsman and Chief Executive Officer, Ombudsman for Banking Services and Investments

3:15 – 3:30  Geoff White, Chair, National Elder Law Section, Canadian Bar Association

3:30 – 3:45  Older Women’s Dialogue Project, Kasari Govender, Executive Director, West Coast LEAF, Krista James, National Director, CCEL, Bev Pitman, Planner, Strategic Initiatives (Seniors), United Way Lower Mainland

For more information click here.

BCLI Consultation Paper on Community Assisted Living in British Columbia

The British Columbia Law Institute and the Canadian Centre for Elder Law are seeking responses to their Assisted Living BC Project Committee's Consultation Paper on Assisted Living in British Columbia, published in November, 2012.

In British Columbia, assisted living residences are registered under the Community Care and Assisted Living Act. Residents in assisted living residences have substantial autonomy, but receive hospitality and a limited number of other services. Assisted living is in between independent living on the one hand, and long-term care on the other.

The Assisted Living BC Project Committee is undertaking a broad and in-depth study. As set out in the paper:

The Assisted Living BC Project examines the legal framework for assisted living from various perspectives: the nature and legal definition of assisted living, housing and tenancy issues, consumer rights (including the relative merits of having a “resident’s Bill Of Rights”), privacy, health and safety, employment and labour relations, dispute resolution, and different regulatory approaches that could be employed. The volunteer Project Committee held 30 meetings to review these issues and developed a series of tentative recommendations in each of these areas. Not every tentative recommendation is unanimous, but each represents the view of at least a majority of the members of the Project Committee. 

This consultation paper summarizes the matters reviewed by the Project Committee and the thinking behind the tentative recommendations. The tentative recommendations have Not been formally adopted by BCLI/CCEL’s directors and are open to change in light of the responses to the consultation paper. Comment and input on the tentative recommendations is sought from all perspectives, including those of assisted living residents and their family members, operators of assisted living facilities, medical, nursing and legal practitioners working with assisted living residents, legal and policy specialists, and members of the public.

You may provide comments by February 28, 2013, as follows:

By mail:

British Columbia Law Institute

321 Allard Hall, Faculty of Law UBC

1822 East Mall, UBC

Vancouver, BC

V6T 1Z1

Attention:Elizabeth Pinsent

By fax: 604 822 0144

By e-­mail: albc@bcli.org

A booklet for responses is available online here.

Government of Canada Plans to Increase the Age of Eligibility for Old Age Security and the Guaranteed Income Supplement to 67 in 2023

In the Federal Budget released today, the Harper Government announced that it will raise the age when seniors will be entitled to the Old Age Security Benefits and the Guaranteed Income Supplement to from 65 to 67. This will not take effect immediately and will be phased in.

As set out in Chapter 4 of the 2012 Federal Budget::

The Old Age Security (OAS) program is financed from the Government of Canada’s general revenues and provides a monthly pension to most Canadians 65 years of age or over. The maximum annual OAS pension is $6,481.

The Government provides additional support to low-income seniors through the Guaranteed Income Supplement (GIS). The maximum annual GIS benefit is $8,788 for single seniors and $11,654 for couples. 

The OAS program provides approximately $38 billion per year in benefits to 4.9 million individuals.

The changes are as follows:

Economic Action Plan 2012 introduces changes to the age of eligibility for OAS benefits, to be phased in gradually, starting in 2023. As well, Economic Action Plan 2012 introduces the option to defer the OAS pension and receive an actuarially adjusted pension, starting on July 1, 2013.

The age of eligibility for OAS and GIS will be gradually increased from 65 to 67, starting in April 2023, with full implementation by January 2029. An 11-year notification period, followed by a 6-year phase-in period, is being provided to ensure that individuals have significant advance notification to plan their retirement and make adjustments.

This proposed legislative change to the age of OAS/GIS eligibility will not affect anyone who is 54 years of age or older as of March 31, 2012. Thus, individuals who were born on March 31, 1958 or earlier will not be affected. Those who were born on or after February 1, 1962 will have an age of eligibility of 67. Those who were born between April 1, 1958 and January 31, 1962 will have an age of eligibility between 65 and 67. For example, as shown in Table 4.2, someone born in April 1960 will be eligible for OAS/GIS at age 66 and one month.

For many, the change will mean working until an older age. But how will this change affect those who are receiving disability benefits under plans that end at age 65? Will this affect private and public disability plans? Will it lead to higher costs for disability insurance?

Canadian Centre for Elder Law Announces 2012 Canadian Conference on Elder Law

The Canadian Centre for Elder Law has announced that it is holding the 2012 Canadian Conference on Elder Law on November 16 and 17 in Vancouver, B.C. According to the press release:

The Canadian Centre for Elder Law is pleased to announce the 2012 Canadian Conference on Elder Law is taking place November 16 to 17, 2012. This is the sixth elder law conference hosted by the CCEL, and for 2012 the Conference returns to beautiful downtown Vancouver, British Columbia. We hope you will join experts, academics, lawyers and advocates from across the globe to advance the discussion of elder law issues.

Over the years this inter-disciplinary event has been a site for discussion of issues of interest to practitioners working in law, policy, government, policing and justice, health care, finance, education and front line advocacy. The theme for this year's conference is "Advocacy and Aging: From Storytelling to Systemic Change."

The conference pre-day, the World Study Group, will be held November 15, 2012. The World Study Group offers scholars an opportunity to share their research and ideas with academics from around the world.

Elder and Guardianship Mediation

The Canadian Centre for Elder Law has published its report on Elder and Guardianship Mediation. As set out in the Executive Summary:

The Elder and Guardianship Mediation report is the first comprehensive study of elder and guardianship mediation in Canada, bringing together various material that should be considered in the determination of how to move forward with the development of elder and guardianship mediation in BC. The report compares the experience with voluntary and mandatory mediation of aging-related and guardianship matters in Canada (with a particular focus on BC) and selected US states where court-connected guardianship mediation programs exist. The practical and ethical issues that confront mediators handling cases involving older persons and persons with diminished mental capacity are analyzed with a view to formulating best practices. Recommendations stated in the report are based on the results of the consultations and research, and represent a high degree of consensus among the many experts and sources consulted in terms of best practice and what is needed to create a viable elder and guardianship mediation program in a jurisdiction.

The report includes several components: an outline of the overarching legal context,clarification of the meaning of the concept of elder and guardianship mediation; background on elder mediation in Canada; a comparative analysis of select US court-annexed guardianship mediation programs; and a discussion of ethical issues that arise in the context of mediating at that place where age and mental capacity intersect.

You may read the report here.

A Practical Guide to Elder Abuse and Neglect Law in Canada

The Canadian Centre for for Elder Law has published A Practical Guide to Elder Abuse and Neglect Law in Canada. The content and purpose of the guide is summarized in the Canadian Centre for Elder Law's media release as follows:

This comprehensive resource includes snapshots of the law in each of the thirteen provinces and territories,a comparative table that allows for quick reference, a set of guiding principles for working with vulnerable adults, and sections that discuss mandatory reporting of abuse
and neglect, rules around confidentiality of personal and health information, and the relationship between mental capacity and elder abuse. The guide also contains a lengthy list of resource agencies.

“Circumstances of abuse, neglect and risk present practitioners from every discipline with ethical dilemmas and challenging questions about how to respond pppropriately in order to protect clients without over-stepping oundaries,” says Staff Lawyer Krista James. “Elder abuse is a complex area of practice that involves many areas of law and rules that vary depending on the province in which you are practicing. It is hard for even a specialist to appreciate their obligations. This tool is a practical resource that will help lawyers, social workers and health professionals to enhance their practice in this area.”

You can also read A Practical Guide to Elder Abuse and Neglect Law in Canada in French here.

Seniors Outreach Workshops

Seniors Outreach & Resource Centre are presenting a series of weekly workshops from January 11 through February 15, 2011 in or near Kelowna, B.C.

I will be speaking at Trinity Baptist  Church, 1905 Springfield Road, Kelowna,  on Tuesday, February 8, from 10:00 am to noon. My topic is Powers of Attorney, Representation Agreements and Committeeships (Adult Guardianship).

The complete schedule of workshops is as follows:

Jan. 11, 2011
Topic: Housing Options for Seniors: Independent Market Housing,
Subsidized/Low-Income Housing, Supportive Housing, Assisted
Living and Residential Care
Presented by Seniors Outreach and Resource Centre Interior Health
Time and Place
10:00am to Noon
Trinity Baptist Church
1905 Springfield Road

Jan. 17, 2011
Topic: Your Rights as a Tenant:
The Residential Tenancy Act and How it Protects Renters
Presented by TRAC – Tenant Resource & Advisory Centre
OARS—Okanagan Advocacy and Resource Society
First location—same content as January 18th workshop
Time and Place
10:00am to Noon
Westbank Manor,
(Lions Housing)
3715 Gellatly Road

Jan. 18, 2011
Topic: Your Rights as a Tenant:
The Residential Tenancy Act and How it Protects Renters
Presented by TRAC – Tenant Resource & Advisory Centre
OARS—Okanagan Advocacy and Resource Society
Second location—same content as January 17th workshop
Time and Place
10:00am to Noon
Rutland Senior Centre,
765 Dodd Road

Jan. 25, 2011
Topic: Financial Benefits and Resources: Options and Eligibility
Presented by Seniors Outreach and Resource Centre Service Canada
Service BC Veterans Affairs Credit Counselling Society
Time and Place10:00am to Noon
Trinity Baptist Church
1905 Springfield Road

Feb. 1 , 2011
Topic: Wills and Estates Matters: Planning Ahead
Presented by Dylan J. Switzer, FH&P Lawyers
Time and Place
10:00am to Noon
Trinity Baptist Church
1905 Springfield Road

Feb. 8, 2011
Topic: Representation Agreements, Powers of Attorney and
Committeeships: Who Will Act on Your Behalf?
Presented by Stan Rule, Sabey Rule LLP
Time and Place
10:00am to Noon
Trinity Baptist Church
1905 Springfield Road

Feb. 15 , 2011
Topic: Elder Abuse and Neglect: How are You Protected?
Presented by Interior Health
Public Guardian and Trustee
Time and Place
10:00am to Noon
Trinity Baptist Church
1905 Springfield Road

For more information, you may contact Seniors Outreach:
Phone: (250) 861-6180
Fax: (250) 861-6153
Email: seniors2@telus.net
http://www.seniorsoutreach.ca/

2010 Canadian Conference on Elder Law

The Canadian Centre for Elder Law and the Law Commission of Ontario, with the support of the Advocacy Centre for the Elderly, are presenting the 5th annual Canadian (International) Conference on Elder Law.

This years conference will be held on October 28-30, 2010, at the Delta Chelsea Hotel in Toronto, Ontario, Canada.

The Canadian Centre for Elder Law website has the following information:

The conference will bring together Canadian and international experts, academics, lawyers and advocates to promote and advance the discussion of elder law issues.

The theme of this year's conference is "Developing an Anti-Ageist Approach to the Law". The conference will explore issues of elder rights, ageism and the law, access to justice, and law reform for older persons. The Advocacy Centre for the Elderly, a pioneer in promoting and protecting access to justice for older persons, will bring its unique expertise and perspective to the conference, developing a stream of conference programming.

The conference pre-day for the World Study Group on Elder Law will be held on October 28th, and will provide an opportunity for scholars in this area to present research updates and new work in this important field.

...

Registration for the 2010 Canadian Conference on Elder Law is now available! Attendees can register online or can download the registration brochure here. The brochure can be submitted either by fax to 1 (604) 822-0144 or by mail to the Canadian Centre for Elder Law at the following address:

Canadian Centre for Elder Law
1822 East Mall, UBC
Vancouver, BC V6T 1Z1
Canada

Regular registrants will receive a discounted Early Bird Rate of $599.00 until September 30, 2010. Registration for 2010 CCEL ends October 20th, 2010, so submit yours today!

Kelowna Seniors Safety Fair, June 14th, 2010

The Senior Outreach and Resource Centre, is presenting its 6th Annual Seniors Safety Fair in Kelowna, British Columbia, on Monday, June 14th; from 9:00 am – Noon at Trinity Baptist Church, at the corner of Spall and Springfield.

The fair features a presentation by Linda Myers, Hon. BSW, RSW, on "The Emerging Landscape of Adult Protection in British Columbia” from 9:00 am to 10:30 am.

For more information call 250-861-6180.

Seniors Safety Fair, Kelowna, B.C.

Seniors Outreach Services Society is presenting its annual Seniors Safety Fair on Monday, June 15, 2009, from 9:00 am to noon, at the Trinity Baptist Church, and Springfield and Spall, in Kelowna, B.C.

The feature speaker is my friend Jim Herperger of FH&P Lawyers, whose presentation is entitled "You Can't Take it With You." There will also be displays from 30 organizations.

The Seniors Safety Fair is being held as part of World Elder Abuse Awareness Day.

Elder and Guardianship Mediation

One of the Canadian Centre for Elder Law's most recent projects is on Elder and Guardianship Mediation. According to the Centre's overview:

In October, 2007 the BC legislature passed the Adult Guardianship and Planning Statutes Amendment Act. Once the Bill is implemented, it will require mandatory mediation for guardianship applications in many common circumstances. While these changes will put British Columbia at the vanguard of guardianship law, mandatory mediation raises a multitude of issues to be addressed such as:

- impartiality of mediations

- capacity to mediate or participate in the process

- abuse / neglect / self-neglect

- conflicts of interest

- confidentiality

- mediator accreditation / training

Due to the relatively low costs of mediation as compared to litigation, more and more families are turning to mediation as a way of resolving family conflict. Mediation may be well suited for many situations, but the same issues listed above must be taken into account to ensure that the process is fair, supportive, and respectful of the parties' rights.

In this project the CCEL is gathering pertinent research and consulting key stakeholders in order to provide information essential for both the adoption of mandatory mediation in British Columbia, and for mediators who work with older clients.

You can read the backgounder here.

Canadian Centre for Elder Law Assisted Living Project

The Canadian Centre for Elder Law is working on a project entitled "Assisted Living: Past, Present and Future Legal Trends in Canada." According to the overview:

This project provides a starting point to engage in a national conversation about a critical "middle option" of health / housing in Canada. This middle option, called "supportive housing / assisted living" in this project, lies at the centre of a seniors' housing continuum.

They have published a study paper here, and are inviting comments by email to ccels@bcli.org.

Withler v. Canada (Attorney General)

The British Columbia Court of Appeal upheld provisions of federal pension plans providing reduced death benefits payable on the death of older members of the plans.

In a decision released yesterday, Withler v. Canada (Attorney General), 2008 BCCA 539, the Court of Appeal considered the constitutionality of supplementary benefits under Public Service Superannuation Act, and the Canadian Forces Superannuation Act.

Both pension plans provide members with group life insurance, but the amount payable on the death of a member is reduced after a certain age. The death benefits payable under the Public Service plan equals twice the annual salary of a member who dies before the age of 66. If the member dies after the age of 66, the death benefit is lower. Beginning at the 66, the payment is reduced by 10% a year. The Canadian Services plan is similar except that the payouts are reduced beginning at the age of 61.

A class action lawsuit was brought on behalf of spouses and partners of deceased members who received a reduced benefit. They argued that the legislation violates section 15(1) of the Canadian Charter of Rights and Freedoms, which says:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

At trial, Madam Justice Garson held that these provisions of the pension plans did not violate section 15(1), and dismissed the claims.

The plaintiffs appealed to the British Columbia Court of Appeal. Madam Justice Ryan, writing for herself and Madam Justice Newbury agreed with the trial judge, and upheld the legislation. Madam Justice Rowles dissented, and would have declared the relevant provisions unconstitutional.

The majority judgment considered the benefits in the context of the overall pension scheme. Although the spouses of seniors received lower death benefits based on the members’ age, they received survivor pensions and other benefits not available to the spouses of younger members. Madam Justice Ryan wrote at paragraph 181:

[181] This case demonstrates the difficulty that arises when one attempts to isolate for criticism a single aspect of a comprehensive insurance and pension package designed to benefit an employee’s different needs over the course of his or her working life. The trial judge concluded that, viewed in context, the supplemental death benefit was the part of a larger scheme comprised of group insurance and pensions designed to look after the changing needs of an employee as he or she remained in the workforce and then retired. At the younger ages, the supplementary death benefit provided a limited stream of income for unexpected death where the surviving spouse is not protected by a pension. At older ages, the purpose of the supplementary death benefit is for expenses associated with last illness and death. The comprehensive plan, while not a perfect fit for each individual, did not meet the hallmarks of discrimination given that it was a broad-based scheme meant to cover the competing interests of the various age groups covered by the plan.

[Since I first published this post, the Supreme Court of Canada dismissed an appeal of this decision. See my post on the Supreme Court of Canada decision here.]

Canadian Journal of Elder Law

The Canadian Centre for Elder Law has released the first issue of the Canadian Journal of Elder Law. The first issue includes the following articles: "Formalizing the Informal: Family Care Agreements in Canada and the United States;" "Cognitive Impairment and the Right to Vote: Rethinking the Meaning of Accessible Elections;" and "Dangers in Aged Care: The Tension Between the Rights of Care Recipients and Those of the Aged Care Providers."

You can read abstracts and link to subscription information here.