The Canada Disability Benefit Act and Women with Disabilities: Pursuing Disability Equality and Reducing Administrative Violence

Authors

Laverne Jacobs, University of Windsor

Document Type

Article

Abstract

Stakeholders have welcomed the Canadian Disability Benefits Act as an opportunity to rectify the long-standing socioeconomic disadvantage experienced by persons with disabilities. This article examines one specific form of marginalization that lies beneath the surface of the discussions surrounding poverty and persons with disabilities in Canada: It considers women with disabilities and disabled women from intersecting backgrounds, who face unique experiences of poverty that need to be addressed by any legislation aiming to eradicate income barriers for the disability community. By drawing on the theoretical frameworks of bureaucratic disentitlement, administrative violence, and disability equality, this article examines the lived realities of women with disabilities to suggest ways that income support systems can be more responsively and ethically designed. Ultimately, the article advances suggestions for law reform and policymaking that aim to ameliorate income security processes for a diversity of women with disabilities while reducing the risk of administrative violence.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Jacobs, Laverne. "The Canada Disability Benefit Act and Women with Disabilities: Pursuing Disability Equality and Reducing Administrative Violence." Osgoode Hall Law Journal 61.2 (2024) : 547-575.
DOI: https://doi.org/10.60082/2817-5069.4021
https://digitalcommons.osgoode.yorku.ca/ohlj/vol61/iss2/10

References

1 Professor and Research Chair in Disability Equality & Administrative Justice, Faculty of Law, University of Windsor. Member, United Nations Committee on the Rights of Persons with Disabilities. The opinions expressed in this paper are those of the author and do not aim to represent any organization. An earlier version of this article was prepared for the “Women with Disabilities: Income Security and Tax Policy” workshop, hosted by the Institute for Feminist Legal Studies, Osgoode Hall Law School, on 11 November 2022. I wish to thank the organizers of the workshop for the invitation to participate, and the participants for their helpful comments and conversations. I am grateful for the excellent research assistance provided by Ariel Minott (JD ’24).

2 Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act, 1st Sess, 44th Parl, 2021 (assented to 22 June 2023). Bill C-22 was introduced into the House of Commons on 2 June 2022. The House of Commons’ Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA Committee) studied the Bill over the course of six meetings held between 31 October and 13 December 2022, then issued a final report. See House of Commons, Sixth Report Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) (December 2022) (Chair: Robert Morrissey), online: [perma.cc/JX59-MP8B] [HUMA]. The Bill passed through the House of Commons after its third reading on 2 February 2023, and the Senate of Canada completed its first reading of Bill C-22 on the same day, showing the expedited circumstances surrounding the Bill. At the time of completion of this article (15 February 2023), Bill C-22 was undergoing debates as part of its second reading before the Senate.

3 Bill C-22, ibid cl 3.

4 Ibid, cl 11.

5 Accessibility legislation comprises statutes designed to provide regulatory standards proactively to eliminate barriers preventing persons with disabilities from participating in society. See Laverne Jacobs, “‘Humanizing’ Disability Law: Citizen Participation in the Development of Accessibility Regulations in Canada” (2016) 3 Revue Internationale des Gouvernements Ouverts 93; Laverne Jacobs, Britney De Costa & Victoria Cino, “The Accessibility for Manitobans Act: Ambitions and Achievements in Antidiscrimination and Citizen Participation,” (2016) 5 Can J Disability Studies 1, DOI: https://doi.org/10.15353/cjds.v5i4.313.

6 See Employment and Social Development Canada, Building Understanding: The First Report of the National Advisory Council on Poverty (2021), online: Government of Canada [perma.cc/8JQX-74KW].

7 See Defend Disability, “Disability and Poverty” (April 2022), online: Defend Disability < defenddisability.ca/advocate> [perma.cc/9AZL-9CAT]. Statistics Canada has also reported that those with “severe” disabilities are at least twice as likely to live in poverty than those with “milder” disabilities. See Statistics Canada, A demographic, employment and income profile of Canadians with disabilities aged 15 years and over, 2017, by Stuart Morris et al, Catalogue no. 89-654-X201 (28 November 2018), online: [https://perma.cc/2XRK-MYLM].

8 Although each country has its own sociological, political, and legal history leading to the intersection of disability and poverty, common factors relate to the ways in which individuals with physiological, mental and intellectual disabilities were poorly valued during industrialization, the creation of contributory and non-contributory benefit systems, and the central role that the medical model of disability played in establishing eligibility criteria. See Robert F Drake, Understanding Disability Policies (Palgrave-McMillan, 1999). See also generally Laurel Daen, “‘To Board & Nurse A Stranger’: Poverty, Disability, and Community in Eighteenth-Century Massachusetts” (2020) 53 J Soc History 716.

9 See Statistics Canada, Impacts of COVID-19 on persons with disabilities, Catalogue No 11-001-X (27 August 2020), online: [perma.cc/BJ74-3HNJ].

10 See e.g., Disability Without Poverty, “Press Release: A Good Life, Not Assisted Death: Disabled People Call on Parliament to Fast-track Bill C-22, the Canada Disability Benefit, this Tuesday!” (19 September 2022), online: [perma.cc/VVN7-BKHT]; “Open Letter from Senators to Government re-Canada Disability Benefit” (17 January 2022), online: [perma.cc/NNS3-QPJT].

11 There has also been debate as to how quickly this legislation could be put in place and whether the best method for realizing this benefit was through strengthening the language of the bill or co-creating regulations. These are important debates but are outside of the scope of the present article.

12 I use both person-first and identity-first language in this article in referring to members of the disability community to respect the important points of view of those who prefer each of these terms. Person-first language serves to challenge the historic practice of recognizing individuals by their medical impairment and privileging medical, cure-based understandings of disability. The term “disabled” preserves ties to political movements that connect and strengthen groups through common identity.

13 Bill C-22, supra note 2, cl 11(1)(f).

14 See Canada Pension Plan, RSC 1985, c C-8, s 60 [CPP]. To be eligible to receive the Canada Pension Plan-Disability Benefit, an individual must have a “severe and prolonged mental or physical disability” and meet a minimum qualifying period (See CPP, s 42(2)). See also Canada Pension Plan Regulations, CRC, c 385, s 68. For an overview of the CPP-Disability program see, Freya Kodar, “Federal Income Support: Canada Pension Plan Disability and Employment Insurance Sickness Benefits” in Laverne Jacobs, ed, Law and Disability in Canada: Cases and Materials (LexisNexis, 2021), ch 4.

15 See Ontario Disability Support Program Act, 1997, SO 1997, c 25, Sched B [ODSPA].

16 See Ronald Kneebone & Oksana Grynishak, “Income Support for Persons with Disabilities” (2011) 4 School Pub Pol’y 1 at 2, DOI: https://doi.org/10.2139/ssrn.1940527.

17 Age may also be a factor. See e.g., Old Age Security Act, RSC, 1985, c O-9, ss 3-4 [OASA].

18 Canada (Minister of Human Resources Development) v Stiel 2006 FC 466, at para 28.

19 On the purposes of the GIS, see OASA, supra note 17, s 11. See also Langlois v Canada (Attorney General), [2018] FCJ No. 1111. The federal government has provided a plain language description of how the GIS administrative regime works. See “Guaranteed Income Supplement” (last modified 5 October 2023), online: Government of Canada [perma.cc/5UVK-LA44].

20 OASA, supra note 17, s 11(3.1). This section granting the minister powers to waive an application. This section reads:

Waiver of application (3.1) The Minister may, in respect of a person, waive the requirement referred to in subsection (2) for an application for payment of a supplement for any month or months in a payment period if, on the day on which the person attains 65 years of age, the Minister is satisfied, based on information available to him or her under this Act, that the person is qualified under this section for the payment of a supplement.

21 See ODSPA, supra note 15, s 5.

22 The CDBA was initially introduced on 22 June 2021 as Bill C-35. It underwent first reading but Parliament was prorogued on 28 April 2022 due to the calling of an election. When Parliament resumed, the CDBA was reintroduced as Bill C-22 on 2 June 2022 almost a year after the original Bill C-35. In 2021, comments by the government and the responsible minister (Minister of Employment, Workforce Development and Disability Inclusion, Carla Qualtrough), suggested that the GIS was being considered as the model for the CDBA. See e.g., Liberal Party of Canada, “Introduce a Disability Benefit,” online: Liberal Party of Canada, [perma.cc/8BKX-V27Z] (stating as part of their re-election platform that: “Once implemented this new benefit [the Canada Disability Benefit] will reduce poverty among persons with disabilities in the same manner as the Guaranteed Income Supplement and the Canada Child Benefit”). See also the BC Disability interview with Minister Carla Qualtrough, Spencer van Vloten, “Exclusive: Minister Says Canadian Disability Benefit Will Mean Independence and Choice” (29 December 2020), online: [perma.cc/F7A3-DWZR].

23 For more information on the HUMA committee study, see supra note 2 and accompanying text.

24 See Employment and Social Development Canada, Legislation to create a new Canada Disability Benefit begins second reading in the House of Commons (News Release) (20 September 2022), online: [perma.cc/9G8G-2Y32].

25 For example, the Government of Canada discusses these mandatory reasons for being in touch with recipients in its plain language description of the GIS for the public. See “Guaranteed Income Supplement: While Receiving GIS” (last modified 5 October 2023), online: Government of Canada [perma.cc/5ZW2-6YA8].

26 “Bureaucratic Disentitlement in Social Welfare Programs” (1984) 58 Soc Service Rev 3 at 3, DOI: https://doi.org/10.1086/644161.

27 Ibid.

28 See “Boldly Going Where No Law has Gone Before: Call Centres, Intake Scripts, Database Fields, and Discretionary Justice in Social Assistance” (2004) 42 Osgoode Hall LJ 363 at 367, DOI: https://doi.org/10.60082/2817-5069.1368.

29 See Jessica P Cerdeña, Onward: An Ethnography of Latina Migrant Motherhood during the COVID-19 Pandemic (PhD Dissertation, Yale University, 2021) [unpublished] at 277-79.

30 Sossin, supra note 28 at 365. See also generally, Laverne Jacobs, “Access to Administrative Justice as an Administrative Law Value: Designing an Inclusive and Accessible Administrative Justice System” (2024) 40 Windsor YB of Access to Justice 158.

31 Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Duke University Press, 2015) at 73, DOI: https://doi.org/10.1515/9780822374794 [Spade].

32 See e.g., The History of Sexuality, vol 1, translated by Robert Hurley (Pantheon Books, 1978).

33 See e.g., Shelley Tremain, ed, Foucault and the Government of Disability (University of Michigan Press, 2018).

34 Spade, supra note 31.

35. Ibid at 73-74.

36 Convention on the Rights of Persons with Disabilities, 13 December 2006, United Nations, Treaty Series, vol 2515, at 3 (entered into force 3 May 2008), art 5, online: Office of the United Nations High Commissioner for Human Rights [perma.cc/AM2U-MEV8] [CRPD].

37 19th Sess, UN CRPD/C/GC/6 (2018) at para 30.

38 Ibid at para 11.

39 CRPD, supra note 36, art 28.

40 Ibid, art 28(1).

41 Ibid.

42 Ibid, art 28(2)(b). Although not the focus of this paper, Article 28(2)(b) obliges state parties to ensure access to social protection programs and poverty reduction programs for older people with disabilities as well.

43 See Rosemary Kayess, Therese Sands & Karen R Fisher, “International Power and Local Action – Implications for the Intersectionality of the Rights of Women with Disability” (2014) 73 Australian J Pub Administration 383, DOI: https://doi.org/10.1111/1467-8500.12092.

44 “Disability and the Persistence of Poverty: Reconstructing Disability Allowances” (2011) 6 Northwestern JL & Soc Pol’y 178.

45 Disabling Poverty, Enabling Citizenship: Recommendations for Positive Change (Council of Canadians with Disabilities, 2014) at 17.

46 For an excellent overview of the history of feminist disability studies, see Ana Bê, “Feminism and Disability: A Cartography of Multiplicity” in Nick Watson, Alan Roulstone & Carol Thomas, eds, Routledge Handbook of Disability Studies, 2nd ed (Routledge, 2019) 421, DOI: https://doi.org/10.4324/9780429430817-30.

47 See e.g., Michelle Fine & Adrienne Asch, “Disabled Women: Sexism without the Pedestal” (1981) 8 J Sociology & Soc Welfare 233, DOI: https://doi.org/10.15453/0191-5096.1456.

48 See Michelle Fine & Adrienne Asch, eds, Women with Disabilities: Essays in Psychology, Culture, and Politics (Temple University Press, 1988); Jenny Morris, ed, Encounters with Strangers: Feminism and Disability (The Women’s Press, 1996).

49 See “Integrating Disability, Transforming Feminist Theory” (2002) 14 NWSA J 1 [Transforming Feminist Theory].

50 Such as debates relating to reproductive technology, the construction of bodily difference, and the ethics of care. See ibid at 2.

51 See ibid. See also Rosemarie Garland-Thomson, Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature (Columbia University Press, 1997).

52 See Female Forms: Experiencing and Understanding Disability (Open University Press, 1999); Felicity Armstrong & Len Barton, eds, Disability, Human Rights and Education (Open University Press, 1999).

53 See Parin Dossa, Racialized Bodies, Disabling Worlds: Storied Lives of Immigrant Muslim Women (University of Toronto Press, 2009), DOI: https://doi.org/10.3138/9781442688919 for very eloquent presentation of this idea.

54 See Thomas, supra note 52 at 24-26.

55 See Jackie Stacey, “Feminist Theory: Capital F, Capital T” in Victoria Robinson & Diane Richardson, eds, Introducing Women’s Studies, 2nd (Macmillan, 1997) 54 at 65, DOI: https://doi.org/10.1007/978-1-349-25726-3, as quoted in Thomas, supra note 52 at 69.

56 See e.g., Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability (Routledge, 1996).

57 On psycho-emotional disablism, see Thomas, supra note 52 at 48-55. With respect to impairment effects, see Thomas, supra note 52 at 42-44. Regarding disability identity, see Wendell, ibid. Susan Wendell, “Unhealthy Disabled: Treating Chronic Illnesses as Disabilities” (2001) 16 Hypatia 17, DOI: https://doi.org/10.1111/j.1527-2001.2001.tb00751.x.

58 See Angela Frederick & Dara Shifrer, “Race and Disability: From Analogy to Intersectionality” (2019) 5 Sociology Race & Ethnicity 200, DOI: https://doi.org/10.1177/2332649218783480.

59 See ibid at 200-01.

60 For an early example of this type of research, see Dossa, supra note 53.

61 See Sami Schalk & Jina B Kim, “Integrating Race, Transforming Feminist Disability Studies” (2020) 46 Signs: J Women in Culture & Soc’y 31, DOI: https://doi.org/10.1086/709213; Frederick & Shifrer, supra note 58.

62 See David J Connor, Beth A Ferri & Subini A Annamma, “From the Personal to the Global: Engaging with and Enacting DisCrit Theory Across Multiple Spaces” (2021) 24 Race, Ethnicity & Education 597, DOI: https://doi.org/10.1080/13613324.2021.1918400.

63 See Sins Invalid, Skin, Tooth, and Bone: The Basis of Movement is Our People, A Disability Justice Primer, 2nd (Sins Invalid, 2019); Alice Wong, ed, Disability Visibility: First-Person Stories from the Twenty-First Century (Vintage Books, 2020); Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice (Arsenal Pulp Press, 2018); Natalie M Chin, “Centering Disability Justice” (2021) 71 Syracuse L Rev 683.

64 Dossa, supra note 53.

65 Sophie Yates et al, “Women’s Experiences of Accessing Individualized Disability Supports: Gender Inequality and Australia’s National Disability Insurance Scheme” (2021) 20 Int J Equity Health 243, DOI: https://doi.org/10.1186/s12939-021-01571-7.

66 Ibid at 3. Yates et al are relying on research by Erica Briones-Vozmediano et al. See “‘The Complaining Women’: Health Professionals’ Perceptions on Patients with Fibromyalgia in Spain” (2018) 40 Disability & Rehab 1679, DOI: https://doi.org/10.1080/09638288.2017.1306759.

67 Anonymous study participant, 19 August, 2021, Research Ethics Board, University of Windsor (Certificate #39161 - REB# 21-085).

68 Recipients of assistance under the Ontario Disability Support Program, for example, are required to complete a monthly report on changes in their employment, training, living expenses, shelter costs, family size, income, and assets. See Ontario, Ministry of Children, Community and Social Services, “Employment/Training Income Report,” online: [perma.cc/3BMH-RW8E].

69 See Statistics Canada, Intimate Partner Violence in Canada, 2018: An Overview, by Adam Cotter, Catalogue No 85-002-X (Statistics Canada, 26 April 2021), online: [perma.cc/3MAX-7P3B].

70 Janet E Mosher, “Grounding Access to Justice Theory and Practice in the Experiences of Women Abused by their Intimate Partners” (2015) 32 Windsor YB Access Just 149, DOI: https://doi.org/10.22329/wyaj.v32i2.4688.

71 See e.g., “Central Forms Repository,” online: [perma.cc/4SHZ-AZJE].

72 Yates et al, supra note 65 at 9.

73 Women’s Legal Education Action Fund, Basic Income, Gender & Disability (LEAF, 2021) at 56 [LEAF].

74 “Uncertain Subjects: Shaping Disabled Women’s Lives Through Income Support Policy” (2020) 9 Can J Disability Stud 78 at 85-86, DOI: https://doi.org/10.15353/cjds.v9i3.647.

75 LEAF, supra note 73 at 59.

76 See Laverne Jacobs & Sule Tomkinson, “Examining the Social Security Tribunal’s Navigator Service: Access to Administrative Justice for Marginalized Communities” (University of Windsor, 2022), online: [perma.cc/J8QZ-C9SF].

77 Ibid.

78 Ibid at 30.

79 This is similar to the gender strategy recommended for Australia’s National Disability Insurance Scheme. See Yates et al, supra note 65 at 2, 12.

80 Cynthia Harris v Minister of Human Resources and Skills Development 2009 FCA 22 [Harris].

81 Nancy Hansen & Lorna Turnbull, “Disability and Care: Still Not ‘Getting It’” (2013) 25 CJWL 111, DOI: .

82 Ibid at 127.

83 Intimate Partner Violence: Experiences of Women with Disabilities in Canada, 2018, by Laura Savage, Catalogue No 85-002-X (Statistics Canada, 26 April 2021) at 6.

84 Ibid at 3.

85 Hidden in the Everyday: Financial Abuse as a Form of Intimate Partner Violence in the Toronto Area (WomanACT, 2019) at 5.

86 Ibid at 16.

87 One of the questions that arises regarding women’s safety is whether women seeking social assistance who plan to use the social assistance to escape abuse will be prompted to sell assets that are helpful to that escape. In other words, will an income cut off prompt the selling of assets that may be helpful to escape, such as cars? See ibid.

88 Ibid.

89 Ibid at 17.