Submissions on Bill 148, the Fair Workplaces, Better Jobs Act

Is $0.65/hour a reasonable amount to pay anyone for work?

Seems impossible but that is what a Judge in Ontario ordered a daughter be compensated for living away from her home and providing 24/7 caregiving to her rich mother. (2015onsc4036)

The basis for this decision appears to be that Ontario’s Substitute Decision Act does not set a tariff for caregiving as it does for property guardians. The property guardian (a major bank) sought compensation that may amount to $170,000 over 5 years (including up to $15,000/year to advise which money market fund to use).  As caregivers are primarily women, and property guardians mainly men or financial institutions, there is the appearance of systemic inequity in the Substitute Decision Act under Section 15 of the Charter of Rights and Freedoms.

The mother had almost $2M in assets and an annual income of $114K yet the Judge’s apparent belief that “Children should not be paid to care for their parents” underpins the decision. As justification, the Judge states he arrived at this amount based on submissions, such as that from two sons who proposed $500/month for 24/7 caregiving ($0.65/hr), which was adopted.  Whether their motivation was that they would inherit any money not spent on caregiving cannot be known, but the Appeal Court, found it was the Judges’ intent to pay $0.65/hr, and it does not result in unjust enrichment, nor is it evidence of bias on the Judge’s part. (2017 ONCA 516)

The Judge reviewed case law which establishes the amount paid should be reasonable in relation to the persons finances, and that the person benefited from the service. He heard the amount the daughter requested was less than ½ the market rate (and far below Ontario’s current minimum wage), and ruled the mother’s benefit was immeasurable.  Still he did not apply that case law. Those recipients where men. Apparently, case law doesn’t actually apply to daughters.

Until the Substitute Decision Act is fixed, to specifically address compensation for caregiving, families will continue be forced to use the civil courts – and face what appears to be capricious and unjust decisions all because the legislature doesn’t provide guidance in the Substitute Decision Act.

I suggest that this panel specifically address caregiver compensation in the final version of Bill 148, the Fair Workplaces, Better Jobs Act. Specifically, I would recommend that the tariff for caregiving be set at minimum wage, unless the caregiver consents otherwise. This would substantially reduce the burden on the courts as a large number of cases under the SDA relate to caregiving fees.

This entry was posted in Attorney General, Care, Law Reform, Legal issues. Bookmark the permalink.

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