[1] For summary information on the RSDP see: Canada Revenue Agency, “Registered Disability Savings Plan (RDSP) Information Sheet RC4460”, online: http://www.cra-arc.gc.ca/E/pub/tg/rc4460/rc4460-12e.pdf (last accessed: November 20, 2013) [CRA, RDSP].

[2] Income Tax Act, R.S.C. 1985, c.1 (5th Supp) [ITA].

[3]ITA, note 2, s.146.4(1), “disability savings plan”, “qualifying person” and “holder”.

[4] ITA, note 2, s.146.4(1), “qualifying person”.

[5] Substitute Decisions Act, 1992, S.O. 1992, Ch. 30 [SDA].

[6] Government of Canada, Jobs, Growth and Long-Term Prosperity: Economic Action Plan 2012 (Ottawa: March 29, 2012) [Government of Canada, Economic Action Plan], 383.

[7] Government of Canada, Economic Action Plan, note 6, 383.

[8] ITA, note 2, s.146.4(1), “qualifying family member”, “disability savings plan”, “qualifying person” and “holder”.

[9] Government of Canada, Economic Action Plan, note 6, 182-183.      

[10] Government of Canada, Economic Action Plan, note 6, 182-183.

[11] Government of Ontario, A Prosperous and Fair Ontario: 2013 Ontario Budget (Toronto: May 2013) [Government of Ontario, 2013 Ontario Budget], 98-99.

[12]  There are many issues that overlap between this project and the legal capacity, guardianship and decision-making project. To the extent possible, the LCO has framed its research and analysis in this project in a manner that is restricted to the special context of the RDSP and that does not preclude options in the larger project.

[13] The LCO recognizes that there is ongoing debate on the language used to discuss persons with particular disabilities and their experiences and that there is a range of views about the most appropriate language. The LCO does not intend its use of particular terms to be construed as definitive and defers to persons with disabilities themselves as to the most appropriate language. During preliminary consultations for this project, stakeholders identified that individuals affected by this project include persons with developmental, cognitive and psychosocial disabilities across multiple demographic populations, which may intersect with other aspects of identity such as age, gender and culture. Sources that provide insights into how related terms are defined in Ontario include: Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, S.O. 2008, Ch. 14 [SIPDDA]; Accessibility for Ontarians with Disabilities Act, S.O. 2005, Ch. 11 [AODA]; Human Rights Code, R.S.O. 1990, Ch. H.19; Convention on the Rights of Persons with Disabilities, online: http://www.un.org/disabilities/convention/conventionfull.shtml (last accessed: July 4, 2013) [CRPD].

[14] The LCO recognizes that there may be cases where an adult has a limited power of attorney that does not extend to the RDSP.

[15] ITA, note 2, s.118.3.

[16] Janet Mosher, “Lessons in Access to Justice: Racialized Youths and Ontario’s Safe Schools” (2008) 46 Osgoode Hall Law Journal 807, 808.

[17] Mosher, note 16, 808, 818.

[18] Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (Toronto: February 2013), 15.

[19] See: Janice Gross Stein & Adam Cook, “Speaking the Language of Justice: A New Legal Vernacular” in Julia Bass et al, eds., Access to Justice for a New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005), 166.

[20] Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012) [LCO, A Framework for the Law as It Affects Older Adults]; Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012) [LCO, A Framework for the Law as It Affects Persons with Disabilities].

[21] Law Commission of Ontario, The  Framework for the Law as It Affects Older Adults, being Appendix A to A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012),  1.

[22] The Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.) 1982 c.11  [Charter].

[23]CRPD, note 13.

[24] Canada Revenue Agency, “Authorize or Cancel a Representative”, online: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/chng_rps/menu-eng.html (last accessed: November 4, 2013).

[25] Frances Westley & Nino Antadze, “From Total Innovation to System Change: The Case of the Registered Disability Savings Plan, Canada”, online:  http://sig.uwaterloo.ca/sites/default/files/documents/Westley,%20Antadze%20-%20RDSP%20Case%20Study_VMarch1502010.pdf (last accessed: August 13, 2013).  The two research studies were: Richard Shillington, The Disability Savings Plan: Policy Milieu and Model Development (Ottawa: The Caledonian Institute of Social Policy, 2005) and Keith Horner, The Disability Savings Plan: Contributory Estimates and Policy Issues (Ottawa: The Caledonian Institute of Social Policy, 2005).

[26] Westley & Antadze, note 25; Minister of Finance’s Expert Panel on Financial Security for Children with Severe Disabilities, A New Beginning: The Report of the Minister of Finance’s Expert Panel on Financial Security for Children with Severe Disabilities (Ottawa: December 2006) [Minister of Finance’s Expert Panel].

[27] ITA, note 2, s.118.3. Minister of Finance’s Expert Panel, note 26, 29-32.

[28] Department of Finance Canada, Ensuring the Effectiveness of Registered Disability Savings Plans (Ottawa: October 2011) available online: http://www.fin.gc.ca/activty/consult/rdsp-reei-eng.asp (last accessed: November 20, 2013) [Finance Canada, Ensuring Effectiveness].

[29] Canada Disability Savings Act, S.C. 2007, c. 35, s.136.

[30] Department of Finance, Ensuring Effectiveness, note 28; Government of Canada, Economic Action Plan, note 6, 181-183.

[31] For an overview of changes introduced in the Economic Action Plan 2012, see: Jack Styan, “Good News for People with Disabilities in the Federal Budget” (Ottawa: Caledon Institute of Social Policy, 2012), online: http://www.caledoninst.org/Publications/PDF/985ENG.pdf (last accessed: November 20, 2013).

[32] Minister of Finance’s Expert Panel, note 26, 14.

[33] Minister of Finance’s Expert Panel, note 26.

[34] Shillington, note 25; The Allen Consulting Group, International Review of Future Planning Options: Final Report (Final Report to the Department of Families, Housing, Community Services and Indigenous Affairs, January 2009) [Allen Consulting Group], 37-39.

[35] See: Jeanette Katrin Elise Moss, Registered Disability Savings Plan: Making the Shift from Welfare to Wealth, Research Project Submitted in Partial Fulfillment of the Requirements for the Degree of Masters of Arts (Burnaby: Simon Fraser University, 2012); Shillington, note 25; Minister of Finance’s Expert Panel, note 26, 2-7.

[36] Moss explains that “[i]n Canada, as in most of the Western world, social security systems have been deliberate in distinguishing between contributory (earnings-related) benefits, and non-contributory (means-tested, income-tested) benefits”. Moss, note 35, 9.

[37] Shillington, note 25, 5; Westley & Antadze, note 25; Moss, 35.

[38] Shillington, note 25, 9.

[39] Shillington, note 25. See also: Canadian Caregiver Coalition, online: http://www.ccc-ccan.ca/content.php?doc=48 (last accessed: August 12, 2013).

[40]See: Andrew Power et al, Active Citizenship and Disability: Implementing the Personalisation of Support (New York: Cambridge University Press, 2013), 5.

[41] See for instance the definitions of social services in: Power et al, note 40; The Law Commission (United Kingdom), Adult Social Care (London: May 2011), 2.

[42] Lora Patton et al, A Principled Approach: Considering Eligibility Criteria for Disability-Related Support Programs through a Rights-Outcome Lens (Toronto: Law Commission of Ontario, 2010); Power et al, note 40.

[43] Colin Barnes, “Understanding the Social Model of Disability: Past, Present and Future” in Nick Watson et al, eds., Routledge Handbook of Disability Studies (New York: Routledge, 2012); Kerri Joffe (ARCH Disability Law Centre), Enforcing the Rights of Persons with Disabilities in Ontario’s Developmental Services System (Toronto: Law Commission of Ontario, 2010).

[44] Speaking of “disability activists and theorists” who in the 1960s “began to develop new conceptions of disability, noting that by focusing only on the biological and functional condition of the individual, existing models failed to recognize the role played by society in limiting and enabling people”. Patton et al, note 42, 9.

[45] Power et al, note 40, “Introduction”; Barnes, note 43; Joffe, note 43.

[46] Minister of Finance’s Expert Panel, note 26, 2; Moss, note 35, 10.

[47] See for instance: Ontario Disability Support Program Act, 1997, Ont. Reg. 222/98, Parts V – VI; Ontario Works Act, 1997, O. Reg. 134/98, Part VI.

[48]Commission for the Review of Social Assistance, Brighter Prospects: Transforming Social Assistance in Ontario (October 2012) [Commission for the Review of Social Assistance]; Shillington, note 25.

[49] The treatment of income and assets under provincial and territorial income support programs varies by jurisdiction. For more information see: Shillington, note 25; Power et al, note 40, 146-149

[50] Commission for the Review of Social Assistance, note 48, 10.

[51] CRA, RDSP, note 1; O. Reg. 222/98, note 47, s.28; O. Reg. 134/98, note 47, s.39.

[52] Power et al, note 40, 178.

[53] Power et al, note 40, 177-178; Westley & Antadze, note 25; Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP.

[54] Power et al, note 40, 11.

[55] Power et al explain the concept of “personalization” as follows: “[a]t its core, personalisation means a more individual approach to the design and delivery of supports which give people more choice over how they best meet their needs”.  Power et al, note 40, 11.

[56] Carmel Laragy & Goetz Ottmann, “Towards a Framework for Implementing Individual Funding Based on an Austrialian Case Study” (2011) 8:1 Journal of Policy and Practice in Intellectual Disabilities 18, 19, presenting a case study of an Australian program. See also: Power et al, note 40.

[57] Power et al, note 40, 177; Moss, note 35.

[58] Westley & Antadze, note 25, 3-4, citing Jack Styan.

[59] Moss, note 35, 8.

[60] Information provided to the LCO by Employment and Social Development Canada.

[61] ITA, note 2, s.146.4(1).

[62] Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP.

[63] Consultation with Daniel Amsler.

[64] Consultation with HIV and AIDS Legal Clinic Ontario; consultation with the Canadian Centre for Elder Law.

[65] For more information on these approaches, see: LCO, A Framework for the Law as It Affects Older Adults, note 20 and LCO, A Framework for the Law as It Affects Persons with Disabilities, note 20.

[66] Information provided to the LCO by Employment and Social Development Canada.

[67] This has been a particular challenge in British Columbia, where the Public Guardian and Trustee for British Columbia represents children in care. It may not be as relevant in Ontario, where children in care are not represented by the Public Guardian and Trustee for Ontario. PLAN & RDSP Resource Centre, Registered Disability Savings Plan: Implications for Children-in-Care (Vancouver: August 2011).

[68] ITA, note 2, s. 146.4(1), “qualifying family member”, “qualifying person”.

[69] Consultation with HIV and AIDS Legal Clinic Ontario; consultation with Legal Aid Ontario; consultation with Mississauga Community Legal Services.

[70] Consultation with HIV and AIDS Legal Clinic Ontario.

[71] Canada Revenue Agency, “Disability Tax Credit Certificate” online: http://www.cra-arc.gc.ca/E/pbg/tf/t2201/t2201-12e.pdf (last accessed: November 20, 2013 ) [CRA, DTC Certificate]; ITA, note 2, s.118.3; Ontario Ministry of Community and Social Services, “Income Support: Disability/Health Eligibility” online: http://www.mcss.gov.on.ca/en/mcss/programs/social/odsp/income_support/eligibility/disability_Health.aspx (last accessed: November 20, 2013); Ontario Disability Support Program Act, 1997, S.O. 1997, Ch. 25, Schedule B [ODSPA], s.4.

[72] Consultation with Pooran Law; Consultation with Goddard, Gamage and Stephens LLP. A recipient may use the RDSP in conjunction with other mechanisms to maximize the amount of funds that are not considered assets or income in determining financial eligibility for income support under ODSP. In Ontario, ODSP has detailed policy rules regarding the treatment of personal injury settlements, inheritances and life insurance proceeds. For example, funds up to $100,000 held in trust derived from an