With attendant-care benefits limited since Feb. 1, 2014, to the amount of a family member’s actual economic loss, families have been struggling to care for their relatives under the new regime as their advocates look for ways to help them find any tool available to provide assistance.
Robert Deutschmann of Paquette Travers & Deutschmann in Kitchener, Ont., says it hasn’t been a smooth transition as families cope with the limitations. “Families cope because sacrifices get made when it comes to assisting family members, including economic sacrifices,” he says.
“The hardships caused by the restrictions under the statutory accident-benefit regime to families will get shifted to the tort regime for the victim who is not at fault. But for family members that may be able to claim under the tort, there is delay and uncertainty associated with the tort system.”
Maia Bent, a partner at Lerners LLP in London, Ont., has observed that many families are suffering from exhaustion and financial stress. “Consider the case of a mother who was working 10 hours a week when a child is critically injured,” she says.
“Before the accident, the remainder of her time is spent caring for her other children and her aged parents, cooking, cleaning, shopping, gardening, and running necessary errands for the family. Now she must provide 24-hour care seven days a week for her injured child but she is only paid for 10 hours. Every other priority in her life is neglected as there is no money to pay someone to assist her with these other tasks.”
Bent believes the erosion of benefits for the families of those critically injured has left many of them in a desperate position.
“Families are cashing in their RRSPs or taking high-interest loans to keep the family afloat,” she says.
When the changes first came in, there was an expectation that families would end up turning to professional caregivers, but plaintiff lawyers such as Najma Rashid of Howard Yegendorf & Associates LLP have seen a marked reluctance to do so. “I think the reality is that unless someone is catastrophic and needs 24-hour nursing or personal support worker care, it is the families who continue to take care of the injured claimants,” says Rashid.
“Unless the attendant has a provable income loss, then in most instances the attendant-care benefit will be less than the Form 1 amount.”
Bent agrees. “I am not seeing many families opting for professional carers instead of family members. There are two reasons for this. First, professional carers provide service in blocks of time. Often, the injured person needs someone for less than that — for example, for 15 minutes every hour — or for unpredictable times, for example, [such as] waking at night. The only way a professional carer could provide service in those types of situations is to remain with the family in case they are needed, but the money allotted to the injured person will not cover that. Second, the injured person often feels uncomfortable with a stranger providing intimate care such as bathing or toileting.”
It’s a significant issue, according to Deutschmann. “The changes can have and do have the effect of unfairly punishing family members who step up to provide the injured person with the same level of care as that from a professional caregiver,” he says. “No doubt there will be some differences in the level of care and that will vary depending on the circumstances, but the intangibles that are provided by a family member are lost in the incurred-expense framework.”
Two recent developments that may provide some relief for families come in the form of new job-protected leaves for caregivers and a court decision that extends attendant care to electronic monitoring through devices.
The Employment Standards Amendments Act, which came into force on Oct. 29, introduces family caregiver leave of up to eight weeks of unpaid job-protected leave and critically ill childcare leave that allows up to 37 weeks in each 52-week period.
An employer can’t threaten, fire or penalize in any other way an employee for taking leave. Parents can also share the care, taking their portion of the leave at the same or different times.
“The leave programs under the Employment Standards Amendments Act provide some assistance, but it will depend on the family circumstances,” says Deutschmann.
“They provide for unpaid leave from work while ensuring that the job of the family member providing care is protected. It will help to have that certainty of job security.”
Bent notes families using the leave provisions could seek some payment through their automobile insurance plan. “However, the families would still have the problem of their remuneration being limited.”
In relation to electronic monitoring, the decision of Shawnoo v. Certas Direct Insurance Co. on Dec. 30 may provide some more options and a chance for remuneration for family caregivers. Ontario Superior Court Justice Marc Garson noted he could find no prior authority addressing the question of whether someone may provide services from a distance via electronic means and devices rather than in person. “I find this surprising given the proliferation of cell phones and texting in society today,” he wrote.
In fact, Bent says the insurance companies have routinely covered such expenses. “It is likely that there had not been a decision on this before because it is not a controversial expense either in the accident-benefit or tort regimes,” she says.
Rashid notes that years ago, parents of adult children with a disability could provide attendant care from a distance using an emergency button kept around their neck.
“In 2015, these same parents would have been connected to their child via iPhone, iPad, and other remote devices. The Shawnoo decision takes the attendant-care concept into the electronic age. I guess the next challenge for caregivers will be whether the insurance companies will agree to pay for their cellphone [or] wireless contracts or even remote home-monitoring systems. I think this is a great decision. It does change the attendant-care landscape.”
Deutschmann believes the decision could lead to other services that will help make the attendant-care role easier. However, he doesn’t see it as having any significant impact on the issue of remuneration for family members who provide care.
“Despite these expanded opportunities to provide care for victims, the white elephant in the room is the restriction on remuneration to family members who provide attendant care. In addition, the fact that the rates for attendant care . . . have not kept pace with market rates or inflation also provides another burden on obtaining any attendant-care services whether provided by a family member or a professional caregiver.”