Families often use trusts to support family members with serious disabilities who also receive supports from social assistance. On April 25, 2018, the Supreme Court will hear an important case that could impact their ability to do this.
That case asks whether a woman referred to as “S.A.” is ineligible for Vancouver social housing because of inheritance monies that are held in trust. The Income Security Advocacy Centre and HIV AIDS Legal Clinic Ontario (HALCO) are intervening as a coalition to try to make sure the Court’s decision does not have a negative impact on social assistance recipients in Ontario.
In Ontario, a social assistance recipient who inherits money can still be eligible for financial support if that money is held in a particular kind of trust, sometimes called a “Henson” trust or a variation of an “absolute discretionary” trust. When money is in a Henson trust, the person in charge of the trust (the “trustee”) has control over when, how and if the money is paid out to the recipient. If money is paid to the social assistance recipient, it is counted as “income” and deducted from their benefits at that time. But any money still in the trust is not considered an “asset” because the recipient has no certain access to it.
These kinds of trusts play a very important role for persons with disabilities. They allow family members to make arrangements to ensure that after their death, their loved ones with disabilities will be supported while at the same time maintaining access to much needed social services and housing.
In S.A.’s case, the Vancouver social housing program wanted to treat her inheritance as an asset even though it was being held in an absolute discretionary trust. When she refused to provide information about the trust, her application to re-new her rent subsidy was denied. The Supreme Court will have to decide whether a social program can treat an “absolute discretionary trust” as an asset, which may affect the way Henson trusts are treated by social assistance programs in Ontario and elsewhere.
ISAC and HALCO are co-counselling with Ewa Krajewska of Borden Ladner Gervais. The Coalition will argue that Henson trusts should not be considered an asset and access to social assistance must be preserved. To read our legal argument, click here: TOR01 -#7349615-FINAL-SA Metro Vancouver Factum On Intervention