Newsletter Vol 16 Fall 2010 - Your Legal Rights

Inside This Issue
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Getting an Inheritance While Receiving
ODSP Benefits
Page 3
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Spotlight on Specialty Clinic
Social Assistance Rate Increase
Cherryholme Decision
Court of Appeal Decision
RDSP’s
Page 4
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Rose of Durham
DCLC Celebrates 25 Years
Maintenance
Our AGM
Our Staff and Board of Directors
Milestones
Staff Profile
DCLC Celebrates 25 Years!
Madame Justice Fran Kiteley was
the keynote speaker for the event
and Board President Stephen
Bourque was the MC for the Anniversary
celebration which took place on
September 16, 2010.
Affidavits
The Durham Community Legal
Clinic has two Commissioner for
Taking Oaths on staff.
Come into the clinic before 4pm,
Monday to Friday if you have a
document that needs to be sworn
in front of a commissioner. Such
documents include: Adult Name
Change, Affidavits for OSAP,
Statutory Declarations for Lost
Passports, Affidavits for Service
etc.
DCLC NEWSLETTER
Durham Community Legal Clinic
Oshawa Centre, 419 King Street West, Unit 3512
Oshawa, ON L1J 2K5
Phone: 905-728-7321; Toll-free: 1-888-297-2202
www.durhamcommunitylegalclinic.ca
DCLC
Volume 16, Fall, 2010
November 2010
Getting an Inheritance While Receiving ODSP Benefits
If you are an ODSP recipient and you inherit money or property, this inheritance
may affect your continued eligibility to receive further Ontario
Disability Support Program (ODSP) benefits.
In order to be eligible to receive ODSP income support, a recipient cannot
have income over a certain level. Nor can the recipient have assets worth
more than a certain amount. However, some income and assets are exempt.
This means that ODSP does not count them when they calculate
your income and assets, one example of this is an inheritance placed in a
trust fund. An inheritance of up to $100,000 will not count as an asset if it
is placed in a trust.
A trust may be set up in a will that provides for your inheritance or after an
inheritance is received, this includes proceeds from a life insurance policy.
Funds from an inheritance or proceeds from a life insurance policy received
directly by a recipient and subsequently placed in a trust (not a discretionary
trust) are treated as income in the month received. These funds
are exempt as assets thereafter, provided that the trust is established as
soon as possible. An ODSP recipient who receives an inheritance and
intends to place that money in a trust fund may be given up to six months
to do so.
Funds placed in trust as a provision of a will are not considered income in
the month received. In these cases, a copy of the will must be reviewed to
determine whether the funds are available to the person for his/her maintenance.
There are a number of trusts which are recognized for ODSP purposes,
these include a trust derived from an inheritance or life insurance policy, a
discretionary/Henson Trust and a private trust.
A trust derived from inheritance or life insurance and available for maintenance
may be established either by the terms of a will or by a member of
a benefit unit with money received from an inheritance or from the proceeds
of a life insurance policy. This type of trust is exempt as an asset
subject to the $100,000 limit. The $100,000 limit applies to the capital
value of the trust derived from an inheritance or life insurance policy, plus
the cash surrender value of any life insurance policies held by a member
of the benefit unit. Continued on page 2
Disclaimer: This newsletter provides general legal information for the benefit of our readers. Although we strive to ensure the accuracy of the information
as of the date of printing, laws may change, and/or the application of these laws may vary in individual circumstances. For assurance that our information,
and your interpretation of it, is appropriate to your particular situation, please obtain legal advice.

Volume 16 Fall 2010
Getting an Inheritance While Receiving
ODSP Benefits
Spotlight on a Specialty Clinic
HIV and AIDS Legal Clinic Ontario
Continued from page 1
A discretionary trust, e.g. Henson Trust, gives the trustee absolute and
sole discretion regarding payments from the trust to the beneficiary.
The trustee is not obligated to make the funds available to the person
for his/her maintenance or support. A true absolute discretionary trust is
not considered an asset for ODSP purposes; therefore the capital value
of such a trust can be in excess of $100,000.
A private trust may be derived from an award, settlement or gift and not
from an inheritance or proceeds of a life insurance policy. A private
trust can be established by a living person for the benefit of another
person (often a relative or friend) and is administered by a trustee.
Depending on the terms of the trust, funds may or may not be available
to the person for his/her maintenance or they may be absolute discretionary
trusts that are not part of a will. These trusts are normally considered
an asset if the trustee is able to encroach on the capital for the
person's maintenance, otherwise they are not an asset.
Interest earned on a trust is exempt as income if it is reinvested into the
capital of the trust and the value of the trust does not exceed the maximum
permitted. The interest may also be exempt if it is used for approved
disability related items or services or education or training expenses
incurred because of a disability.
ODSP recipients who have trust funds should know that there are reporting
obligations to which they must adhere in order to ensure that
monies from the trust are exempt when calculating their income. For
example, the ODSP recipient or his/her trustee may be required to
provide an annual report to ODSP showing all payments to and from
the trust.
Court of Appeal Decision
HALCO- HIV and AIDS Legal Clinic is a charitable
not for profit community based legal clinic which provides
free legal assistance to people living with or
affected by HIV/AIDS in Ontario.
HALCO is funded by Legal Aid Ontario, the AIDS
Bureau of the Ontario Ministry of Health and Long
term Care and the ACT Community Partner’s Fund.
HALCO was founded in 1995 and the demand for
their services has continued to grow. Their staff provide
legal advice and representation, engage in law
reform, public legal education and community development
initiatives.
For more information contact HALCO at 1-888-705-
8889 or visit their website at www.halco.org
Director ODSP v. Cherryholme, 2010 OSCJ 3259
(CanLII)
The Ontario Court of Appeal has recently ruled that s. 5 (2) of the
Ontario Disability Support Program Act was contrary to the Human
Rights Code. This decision confirms that people who are disabled
because of a drug or alcohol addiction may be entitled to ODSP
benefits. This has been a long standing legal dispute dating back to
the late 1990’s.
The Government’s position has been that s 5(2) did not create a true
disadvantage because excluded applicants were directed to the Ontario
Works program. The Court however agreed with the Social
Benefits Tribunal decision that it did in fact create a true disadvantage
in that it denied income support and imposed restrictions because
of assumed or unjustly attributed characteristics.
We strongly advice those of you are applying for or those of you
working with someone who is applying for Ontario Disability contact
the Durham Community Legal Clinic for assistance.
Social Assistance Rate Increase
Ontario Works and Ontario Disability rates are set to increase by 1% on
November 1, 2010. Currently a single person on ODSP gets a maximum
monthly cheque of $1042. This will now increase to $1053.
A single Ontario Works recipient will see an increase from $585 to
$592.
This was an appeal by the Director, Ontario Disability Support Program
(“ODSP”) from the decision of the Social Benefits Tribunal (“The
Tribunal,”) which was affirmed on application for reconsideration. In
the decision rendered by the Tribunal, the Respondent, Mr. Cherryholme,
was found to be a person with a disability within the meaning
of s.4(1) of the Ontario Disability Support Program Act, 1970, S.O.
1997, SCH.B.
In the case at bar, the issues before the Divisional Court were:
1. Did the Tribunal err in law by finding the respondent to be a person
with a disability, without making a finding as to whether there was
verification of a restriction in activities of daily living
2. Did the Tribunal err in law by finding there was a “substantial impairment”
on oral evidence, disregarding the medical evidence
3. Did the Tribunal err by considering irrelevant factors
In its decision, the Divisional Court noted that the only medical evidence
before the Tribunal regarding the restrictions in activities of
daily living was the Health Status Report which was completed by the
Respondent’s physician. In this report, the doctor listed depression as
the only condition from which the Respondent suffered. Panic attack
was noted as the impairment and the restriction was listed as, “unable
to sleep more than four hours at a time. Daily headaches. ”
The doctor noted no symptoms or signs in six categories and minimal
signs or symptoms in seven categories, on the Emotional Wellness
Scale where signs of intellectual or psychological conditions in13
areas can be listed. With respect to the activities of daily living, the
doctor indicated all 24 categories listed were within normal limits.
Con’t on pg 3

Volume 16 Fall 2010
DID YOU KNOW….
RDSP’s
The Registered Disability Savings Plan is a long
term saving plan to help Canadians with disabilities
save for the future. You should consider opening
an RDSP if you have a long term disability and are
under the age of 60, are a Canadian resident with a
Social Insurance Number, are eligible for the Disability
Tax Credit and are looking for a long term
savings plan.
There is no annual contribution limit to the RDSP
but there is a lifetime contribution limit of $200,000.
Anyone can contribute to an RDSP if they get written
consent of the RDSP holder. The deadline for
contributions each year is December 31 st .
There is no impact on federal benefits such as the
Canada Child Tax Benefit, the Goods and Services
Tax Credit, Old Age Security, and Employment Insurance.
RDSP’s will have little or no impact on
social assistance payments.
To help you save, the Government pays a matching
grant of up to $3500 depending on the amount contributed
and your family income. Earnings accumulate
tax free until the money is taken out of the
RDSP. To encourage savings, grants and bonds
must remain in the RDSP for at least 10 years.
Con’t from pg 2
The Divisional Court noted that although the Tribunal referred to
the medical evidence in support of Mr. Cherryholme’s claim as
being weak, it accepted his evidence he was reluctant to provide
to his physician with a true picture of his emotional status because
his estranged wife was an employee in the doctor’s office
and he did not wish her to know of his emotional disability. The
Tribunal then accepted Mr. Cherryholme’s self-assessment of
emotional disability and restrictions in his daily living activities.
Holding:
The Divisional Court emphasized that the mandatory verification
requirement applied to restrictions, as well as impairments and
durations, and that the Tribunal was required to make a finding
as to the existence of the required verification of restrictions.
In its decision, the Court determined that “there was virtually no
credible medical evidence before the Tribunal in support of the
claim for disability and the required verification by a qualified
person was utterly lacking.” It went on to say that, the Tribunal
erred in law by failing to make a finding of verification by a prescribed
professional of any restrictions in activities in daily living
is in our opinion an error in law.”
Local Agency Spotlight
Rose of Durham
Rose of Durham got its start in 1988 when a group of
women who belonged to the Catholic Church saw a
need in the community to support young mothers. Today,
Rose of Durham is a charitable, non-profit organization
which offers supportive counselling and programming
to young parents in Durham Region, they
serve over 400 clients a year. This includes females
under the age of 25, and males under the age of 30.
Programs cover a variety of parenting needs through
a Dad's Group, Cooking class, Parenting 101, Mommy
& Me, Little Hands, Teen Parent School Program, Prenatal
classes, and more. Programs focus on the importance
of attachment with your baby and basic parenting
skills. They also provide individual, supportive counselling
with professional staff. With it’s main branch in Oshawa
and It’s outreach workers in Ajax, Pickering, Beaverton
and Uxbridge, They are able to serve young parents
in need all over Durham. To find out more about
services, to make a donation or to volunteer please visit
roseofdurham.com
Maintenance
When you come across a maintenance issue in your unit, the
first thing you should do is notify your landlord in writing,
and keep a copy for your records.
The Residential Tenancies Act says that it is the landlords
responsibility to maintain the rental unit and to comply with
health, safety, housing and maintenance standards.
If, after you make the landlord aware of the issue in your unit,
and nothing is done about it, you can file a T6 Application
about Maintenance with the Landlord and Tenant Board. The
fee for this application is $45.00
On the day of your hearing, you will have the opportunity to
try and mediate with your landlord before you go to a hearing.
Mediation is voluntary and if it doesn’t work out, you will
proceed to a hearing.
You should come prepared to the hearing with 3 copies of
any evidence you will be relying on to prove what you have
claimed in your application, such as pictures, receipts and a
copy of any paperwork you have that notifies the landlord of
the maintenance issues claimed in your application.
If you are having issues with maintenance, call DCLC @
(905) 728-7321.

Volume 16 Fall 2010
Durham Community Legal Clinic’s Annual General Meeting
Our AGM was held on September 16, 2010 at the New Courthouse in Oshawa. Several Community Agencies and Clinic supporters
where on hand to join the celebration. The membership and Board voted on a minor change to our By-law, Minutes from last
meeting and voted in a new member to our Board of Directors, Audrey Andrews. We would like to welcome Audrey and we look
forward to having her as part of the Board.
Board of Directors
There have been some changes to the Durham Community
Legal Clinic Board of Directors .
Stephen Bourque
Self-Employed, Chair
Paul Dobbs
John Howard Society, Vice-Chair
Lynn Lunt
Self Employed Bookkeeper, Treasurer
Raedah Abdullah
Community Development Council Durham, Board
Member
Audrey Andrews
Region of Durham, Board Member
Allyce Mutungi
Lawyer, Board Member
Christine Vos
Community Living Oshawa/Clarington, Board Member
Mark Bouwmeester
Durham Mental Health Services, Board Member
Kelly Weeks,
Canadian Mental Health Association, Board Member
Virginia Harwood
Durham College, Board Member
Jonathon Dixon
OUR STAFF
Deborah Hastings, Executive Director
Gia Williams, Staff Lawyer
Cathy Duignan, Community Legal Worker
Stefanie Famme, Community Legal Worker
Emily Robb, Tenant Duty Legal Worker
Lisa Petit, Support Staff
Colleen Twyman, Support Staff
Michele Prescott, Office Manager
Region of Durham, Board Member
Milestones
This year marked significant milestones for two of the Durham Community
Legal Clinic staff.
Cathy Duignan, community legal worker/paralegal is celebrating 20
years with the Durham Community Legal Clinic. Cathy began working
with the Clinic in 1990 as support staff and over the years worked her
way to community legal worker.
Deborah Hastings is celebrating 10 years with the Durham Community
Legal Clinic. Deborah has been the Executive Director of DCLC since
2000 and has brought about many positive changes.
We would like to thank both Deborah and Cathy for their dedication,
hard work and commitment to the Legal Clinic. Congratulations to you
both on your success.
Staff Profile– Lisa Petit, Senior Support Staff
Lisa Petit joined the Durham Community Legal Clinic in 2003.
She is the senior support staff person and is responsible for intake
and providing administrative assistance to all of the legal
workers. Lisa is also an appointed Commissioner of Oaths as
well as the backup tenant duty legal worker. Lisa is involved in
the majority of the Clinic’s outreach activities each year.
Prior to joining the Durham Community Legal Clinic Lisa graduated
from the Legal Administration Program and worked as a
Property Manager.
The aspect of her job that Lisa enjoys the most is providing people
with advice and knowing she helped them in their time of
need
The Durham Community Legal Clinic provides free legal
advice to low income residents of the Durham Region in the
following areas:
*Disability Issues *Ontario Human Rights
*Income Maintenance *Criminal Injuries Compensation
*Tenant Issues *Employment Insurance Appeals
*WSIB
* And more...
*Wills and Powers of Attorney